Summary
granting employer's motion for summary judgment where plaintiff alleged that her supervisor rubbed her back once in a circular fashion and then threatened to "make things hard" for her after she complained to him about his behavior.
Summary of this case from Lawler v. Norristown State HospitalOpinion
No. 01 CIV. 7847 (DLC)
December 11, 2002
Louis Ginsberg, The Law Firm of Louis Ginsberg, P.C., 55 John Street, 10th Floor New York, N.Y. 10038, For plaintiff
Kevin R. Dantzler, Corporation Counsel of the City of New York, 100 Church Street New York, N.Y. 10007, For defendants
OPINION AND ORDER
On August 22, 2001, Kidada Medina ("Medina") filed this action alleging employment discrimination by the New York City Department of Parks and Recreation ("Parks Department") and the City of New York during her approximately six weeks of employment at the Parks Department. The complaint alleges federal causes of action under 42 U.S.C. § 1981 for race discrimination based on unequal pay and for retaliation stemming from complaints regarding the unequal pay. Medina also alleges sexual harassment, pay discrimination, and retaliation under the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. (the "State HRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (the "City HRL"). The defendants have moved for partial summary judgment to dismiss each of the causes of action alleging pay discrimination and sexual harassment. They concede that the retaliation claims must await trial. For the following reasons, the motion is granted.
Background
The following facts are undisputed or as alleged by the plaintiff unless otherwise noted. Medina began work as an investigator for the Parks Department on May 29, 2001. Approximately one week later, on June 6, another Parks Department employee, Stanley Glemaud ("Glemaud"), returned from vacation. Glemaud's desk was located near Medina's. Medina alleges that in the course of the morning, Glemaud touched her on her back in a circular motion and asked if he could open the window. Medina responded by saying that she did not mind if he opened the window but asked that he not touch her. Glemaud allegedly became belligerent towards her, told her she was rude and unprofessional, and warned her that he could make things difficult for her in the Parks Department. Medina alleges that Glemaud later followed up on his threat by refusing to assign her an automobile. Defendants have offered evidence that efforts were being made to provide the vehicle that was to be assigned to Medina with new license plates and maintenance that it required.
Minutes after the incident, Medina typed a memo to Seth Blau ("Blau"), the Parks Advocate, and Thomas Griffin ("Griffin"), the Deputy Parks Advocate, in which she stated that she was "requesting an immediate meeting and supervisory intervention after an incident that occurred a short while ago." Medina wrote that Glemaud "rubbed his hand along my back and asked me if [it] was okay to open the window because he was feeling warm." She further stated that Glemaud's "actions and verbal communications put me in an uncomfortable position. I also found his conduct to be offensive, threatening and intimidating." Medina also telephone the Parks Department's Office of Equal Employment Opportunity ("OEEO") and spoke with Iyana Titus ("Titus"), an OEEO investigator.
Upon being notified of the alleged incident approximately twenty minutes after its occurrence, Blau contacted Medina by telephone and asked that she come to his office. When she arrived, Blau told Medina to wait a moment so that Griffin could join them. During the meeting among Blau, Griffin, and Medina, Blau received a telephone call from the OEEO. Blau then immediately sent Medina to the OEEO, where she met with Titus and signed an interview statement. Later, in response to Medina's request, Blau also changed Medina's work station.
In a June 27 report, the OEEO described the results of its interviews of the plaintiff, Glemaud, and two co-workers who overheard some of the exchanges between the plaintiff and Glemaud. In her interview statement, Medina asserted that Glemaud had rubbed her bare back once in a circular motion before proceeding towards the window to open it. The OEEO did not find probable cause to believe that Glemaud had sexually harassed the plaintiff. Specifically, the OEEO stated that "one isolated touch to the back does not rise to the level of sexual harassment." The OEEO did, however, find that Glemaud had violated the Department's standards of conduct by intimidating and non-sexually harassing behavior and required him to participate in a "supervisor's conference" for the violation. Both the plaintiff and Glemaud were cited for violating the standard of conduct prohibiting the use of abusive language toward a fellow employee. Medina's employment was terminated on July 12.
Medina alleges that when she was interviewed by Blau in May 2001, Blau told her that her salary would be $32,000 a year. On the first day of her employment, however, Blau informed her that she would be earning approximately $28,000 per year. Medina complained to the Parks Department's Personnel Department. Medina alleges that soon after complaining to the Personnel Department, she received a payroll document showing that the minimum salary for her position, effective April 1, 2002, was $30,479.00.
Medina also contacted her union representative, Mike Riggio ("Riggio"), who told her that he would investigate the matter. Riggio subsequently informed Medina that her salary was based on her being hired in the position of "Clerical Associate" rather than "Investigator." On July 11, the day before her employment was terminated, Medina sent a fax to Riggio consisting of a copy of her Parks Department identification card, which listed her title as "Investigator Discipline," and a copy of a memo Medina had received from a Parks Department Verification Specialist stating that Medina "was appointed as an Investigator of Discipline I on May 29, 2001, at the hourly salary of $15.32." By Medina's calculation, this hourly pay rate amounts to an annual salary of $27,882.40.
Medina alleges that upon inquiring further about her pay, she was told by one Denise, a Parks Department employee in the payroll department who "puts the salaries in the computer," that "African-American employees (in the Parks Department] are paid less that what their positions require."
Defendants have presented evidence, undisputed by Medina, that several African-Americans hired by the Parks Department to the position of investigator in roughly the same period when Medina was hired were paid in excess of the $32,000 promised to the plaintiff.
At the time her employment was terminated, Medina was retroactively paid $9.52 for each day of her employment, a payment which the defendants contend has resulted in the plaintiff being paid the minimum civil service salary for an investigator.
Discussion
Summary judgment may not be granted unless the submissions of the parties, taken together, "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) The substantive law governing the case will identify those issues that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.Bd 232, 236 (2d Cir. 2002) (citation omitted). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the Court must view all evidence in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465-66 (2d Cir.), cert. denied, 122 S.Ct. 460 (2001). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
I. Sexual Harassment
Medina's sexual harassment claim under the State HRL and the City HRL is analyzed under the Title VII framework. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000). To prevail on a claim that sexual harassment caused a hostile work environment in violation of Title VII, a plaintiff must establish two elements. The plaintiff must show "(1) that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, and (2) that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (citation omitted). Further, "it is axiomatic that in order to establish a sex-based hostile work environment under Title VII, a plaintiff must demonstrate that the conduct occurred because of her sex." Id. at 374 (citation omitted)
"The sufficiency of a hostile work environment claim is subject to both subjective and objective measurement: the plaintiff must demonstrate that she personally considered the environment hostile, and that the environment rose to some objective level of hostility." Leibovitz v. New York City Transit. Auth., 252 F.3d 179, 188 (2d Cir. 2001). See also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). "As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive. Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Alfano, 294 F.3d at 374 (citations omitted). Nevertheless, "even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff's workplace." Id. "In short, a plaintiff alleging a hostile work environment must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." Id.
Medina has identified a single incident that she contends amounts to sexual harassment: Glemaud's rubbing her back once in a circular motion. She also asserts that Glemaud stated, during their exchange of words following the touching, that he could make things hard for her and that he subsequently did so be refusing to assign her an automobile. Medina alleges that the touching made her extremely uncomfortable. Nonetheless, this single incident, including the angry words that accompanied it, is insufficient as a matter of law to constitute sexual harassment. Because Medina has failed to raise a question of fact that the alleged harassment was sufficiently severe to alter the conditions of her employment, the issue of whether Glemaud's conduct may be imputed to the Parks Department need not be considered.
II. Unequal Pay
Medina's Section 1981 claim alleging unequal pay as a result of race discrimination is analyzed under the Title VII framework. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000). Courts analyzing discrimination claims under Title VII apply the three step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973) Under this framework, a plaintiff must first establish a prima facie case of discriminatory denial of equal pay by showing that (1) she was "paid less than non-members of her [race] for work requiring substantially the same responsibility;" and (2) the unequal pay occurred under circumstances giving rise to an inference of discriminatory racial animus. Belfi v. Prendergast, 191 F.3d 129, 139 (2d Cir. 1999); see also Austin v. Ford Models, Inc., 149 F.3d 148, 153 (2d Cir. 1998) (overtime), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Tomka v. Seiler Corp., 66 F.3d 1295, 1310, 1312-13 (2d Cir. 1995) (equal pay), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
Although the plaintiff's burden in making out a prima facie case is "minimal," Belfi, 191 F.3d at 139, the fact that a plaintiff was paid less than an employee who performed a job that was "merely comparable" to the plaintiff's job is not sufficient to establish a prima facie case of unequal pay. Tomka, 66 F.3d at 1310 (citation omitted). "To be `similarly situated,' the individuals with whom [plaintiff] attempts to compare herself must be similarly situated in all material respects." Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997); see also Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (2d Cir. 1992). "When plaintiffs seek to draw inferences of discrimination by showing that they were similarly situated in all material respects to the individuals to whom they compare themselves, their circumstances need not be identical, but there should be a reasonably close resemblance of facts and circumstances. What is key is that they be similar in significant respects." Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001) (citations omitted)
Upon establishing a prima facie case of discrimination the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001). If the employer has met its burden, the plaintiff bears the ultimate burden of showing that the defendant intentionally discriminated against the plaintiff. Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000). The "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." Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001) (citation omitted). An employer that has put forth nondiscriminatory reasons for its employment action is entitled to summary judgment "unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000)
Defendants have offered evidence that they have paid African American investigators starting salaries at or above the minimum salary for investigators and at or above the $32,000 allegedly promised to the plaintiff. The plaintiff has offered no admissible evidence that the failure to pay her either the minimum salary for an investigator or the promised $32,000 was on account of race discrimination. She has offered no evidence of the salaries paid to any other investigator, whether African American or white. She relies instead on two pieces of information that are not admissible evidence for this claim.
First, she relies on her own deposition testimony That a woman in the payroll department named Denise told her that African Americans are paid less than "their positions require". This is inadmissible hearsay. A party resisting a motion for summary judgment must present admissible evidence in opposition to the motion. See Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999) (summary judgment granted on claim where plaintiff's "statement as to what he `was told' was hearsay that would not be admissible at a trial")
Second, Medina relies on a class action complaint filed in May 2001 against the Parks Department on behalf of its African-American and Hispanic employees. This document is also not admissible evidence.
Finally, Medina argues that defendants' evidence regarding the salaries paid to Africa-American investigators is not relevant since "this case is not about what other African-American employees were making." To support her claim that race discrimination was responsible for her salary, however, Medina must point to admissible evidence from which that motive could be inferred. See Belfi, 191 F.3d at 139. Evidence of the salaries of African-American and non-African-American investigators would be highly relevant. Medina contends that her discrimination claim concerns solely those investigators hired by Blau. Even if limited to investigators hired by Blau, however, Medina has offered no evidence that Blau discriminated against her on the basis of her race. For example, she has offered no evidence of the salary paid to any other investigator hired by Blau and no direct evidence of racial animus.
Because Medina has not presented evidence sufficient to create a question of fact with regard to her unequal pay claims under Section 1981, her State HRL and City HRL claims, which are analyzed under the same standard as her Section 1981 claim, must also be dismissed. See, e.g., Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (ADEA standard applied); Tomka, 66 F.3d at 1312-13 (Title VII standard applied to State HRL unequal pay claim)
Conclusion
For the reasons stated, defendants' motion for partial summary judgment is granted. A scheduling order will be issued with respect to plaintiff's retaliation claims.