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holding that the plaintiff had not met her burden where she had a weak prima facie case, no showing that the proffered reason was false, and where additional indicia of nondiscrimination existed
Summary of this case from Springer v. New YorkOpinion
02 Civ. 6933 (RJH)
May 12, 2004
OPINION
Plaintiff Ina Norris ("plaintiff or "Norris") brought this action against her former employer, the New York City Housing Authority ("defendant" or "NYCHA"), alleging discriminatory treatment, termination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. Defendant moved for summary judgment. Defendant's motion is granted for the reasons set forth below.
Plaintiff's Amended Complaint also asserted claims against individual defendants who were also NYCHA employees, as well as a state law claim of intentional infliction of emotional distress, all of which she withdrew prior to the filing of this motion.
BACKGROUND
Many of the factual statements cited in this section are attributed to Defendant's Statement of Uncontroverted Facts in Support of its Motion for Summary Judgment ("56.1 Statement") and are cited hereinafter as "56.1 ¶ __." Under Local Civil Rule 56.1 of the Southern District of New York, a party moving for summary judgment is required to file with its motion "a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Rule 56. l(b) further requires that the party opposing the morion set forth in a separate statement any "material facts as to which it is contended that there exists a genuine issue to be tried." Local Rule 56.1(c) provides that any statement made in the movant's 56.1 statement that is uncontroverted in the opposing party's statement "will be deemed to be admitted." Plaintiff failed to file a statement in response to defendant's 56.1 statement. Although the Court is thereby entitled to take every fact in defendant's 56.1 Statement as admitted, see Baker v. Dorfman, 239 F.3d 415, 422 (2d Cir. 2000), Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998) (per curiam), it is not required to do so under the law of this jurisdiction. "A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules. Thus, we have previously indicated, and now hold, that while a court is not required to consider what the parties fail to point out in their Local Rule 56.1 statements, it may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement." Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citations and internal punctuation omitted). The court therefore will consider all admissible evidence in the record, whether contained in the 56.1 Statement or elsewhere.
Norris, an African-American woman, was hired in October 1987 by NYCHA, a public authority responsible for providing and overseeing housing services for low-income New York City residents. (56.1 ¶ 3.) Her first position with NYCHA was as an employment coordinator for the Basic Employees Skills Training Program within the Social and Community Services Department. (56.1 ¶ 5.) In July 1993, Norris transferred to NYCHA's Department of Equal Opportunity ("DEO") where, as a Community Coordinator, her job was to investigate and resolve complaints of discrimination made by NYCHA employees. (56.1 ¶¶ 9-10.) In late 1995 or early 1996, Norris transferred again, this time to the Community Operations Department, which had been newly formed from the merger of the Community Affairs and Social and Community Services Departments. (56.1 ¶¶ 32-37.) Her new position made Norris responsible for day-to-day supervision of a cluster of about six senior and community centers in the North Bronx operated or sponsored by NYCHA, and involved visiting the centers, acting as a liaison between NYCHA and tenant associations, assisting with tenant association elections, and providing information and assistance to the centers. (56.1 ¶¶ 38-39, 43-46, 48-57.) Morris worked for the Community Operations Department until March 2000, when her employment was terminated. (56.1 ¶ 189.)
Norris' Disciplinary History at NYCHA
Morris' work habits and performance began to meet with disapproval from her supervisors during her tenure at DEO. Moms' direct supervisor counseled and reprimanded her in late 1994 and 1995 for frequent lateness and excessive use of the telephone for personal calls, and expressed concern to Norris about the quality of her work, the need for Norris to complete her work more quickly, and her failure to comply with certain workplace procedures. (56.1 ¶¶ 11, 23-25.) In March 1995, the director of DEO wrote a memo to NYCHA's director of personnel, requesting that a General Trial be scheduled for Norris, because Norris "lack[ed] the skills to competently perform the duties of the position of Investigator." (56.1 ¶ 26.) However, Norris transferred to the Community Operations Department before a General Trial was scheduled.
Because NYCHA employees in certain categories have a legally-protected property interest in their employment, and can only be terminated for good cause, the employee is entitled to a full hearing-including the employee's right to call witnesses-before an impartial hearing officer and must be found guilty of charges of incompetence or misconduct before her employment may be terminated. N.Y. Civ. SERV. LAW § 75 (McKinney 1999). Norris, as a NYCHA of several years' duration, is undisputedly covered by this statute.
Disciplinary problems first arose for Norris in her employment at Community Operations when, in April 1997, Norris and three co-workers left the Bronx Borough Office together at lunchtime and were absent for several hours without authorization. The Director of the Bronx Borough Office, Ernesto Lozano ("Lozano"), conducted an investigation of the incident and issued disciplinary memoranda to the employees involved for claming to have worked hours they did not actually work and, further, for disregarding directives to spend time that day recruiting participants for a literacy pilot program. (56.1 ¶¶ 86-92.)
In late 1997 or early 1998, Lozano and his deputy reorganized the Bronx Borough Office. Norris, who had been assigned to work under the supervision of a Borough Administrator, Ana Diaz Brewster ("Brewster"), was reassigned to a different Borough Administrator, Maggie Moats ("Moats"), an African-American woman. (56.1 ¶¶ 111-115.) According to Lozano, one of the reasons for the reassignment was that Norris required closer supervision and had resisted working at her assigned community center away from the main office. (56.1 ¶¶ 103-12.) After her reassignment, Norris' job responsibilities remained essentially the same. (56.1 ¶¶ 116-121.) Within a short period of time, her work habits became subject to mounting criticism from Moats. In a memo dated August 3, 1998, Moats reprimanded Norris regarding a confrontation between the two at the Bronx Borough Office on July 29, 1998. The memo describes Moats' encountering Norris in the office after having instructed her to report to her work site at the community center. After some time had passed and Norris still had not left the office for her work site, the memo recounts,
I informed you that there was no work for you to do at the Borough Office and that it was time that you report to your site. Before I could finish, you flew into a tirade, shouting that you were not a child and that you would report to your site upon the completion of your task. You continued to raise your voice, shouting and accusing me of harassing you. The behavior you displayed in front of the Summer Seasonals and co-workers was insubordinate, in poor taste, and unprofessional to say the least . . . and will not be tolerated.
(56.1 ¶ 126; Moats Aff. Ex. B.) Moats wrote another memo to Norris, dated August 4, 1998, stating:
You failed to submit your weekly schedule . . . [, which] must reflect dates, times and sites you plan to visit; daily visits to different sites (sponsored and Authority operated). . . . You have also failed to submit narratives on your findings at each site visit. The purpose of site visits is to document any issues, findings and/or concerns. To date, I have not received one narrative from you.
(56.1 ¶ 127.)
Another memo from Moats to Norris, dated August 7, 1998, stated:
You are hereby charged with failure to adhere to directives [about maintenance and submission of your timecard]. Your overt, insubordinate attitude/behavior, continuous failure to adhere to and blatant disregard for directives and/or mandates will undoubtedly result in disciplinary action.
(56.1 ¶ 128.)
At a meeting between Moats and Norris on September 10, 1998, Moats informed Norris of the need for better communication between the two and the need for Norris to follow NYCHA policies and procedures and Moats' directives. (56.1 ¶ 133.) Following that meeting, Moats sent three more memos to Norris between September 30 and November 9, reprimanding Norris for failing to submit assignments, being absent from her worksite without authorization, and failing to submit weekly schedules. (56.1 ¶¶ 134-136.) In a "Memo to the File" dated November 24, 1998, Moats described a November 23 telephone conversation with Norris during which Moats asked Norris to provide a doctor's note to justify an absence from work, after which Norris raised her voice and "screamed, `I will not let you stress me, I am not going to be harassed by you. I'm sick and tired of you. I will never work with you, never.'" (56.1 ¶ 138.) Finally, on December 22, 1998, Moats recommended to Lozano that a General Trial hearing be scheduled against Morris based on charges of incompetence and misconduct, which Lozano approved but did not direct. (56.1 ¶ 139.)
Administrative Proceedings
On or about February 10, 1999, NYCHA preferred multiple charges against Morris for incompetence and misconduct (56.1 ¶ 141). During 1999, a hearing ("General Trial") was held pursuant to section 75 of the New York Civil Service Law (which requires that a civil service employee be found guilty of charges of "incompetency or misconduct" in a full hearing before an impartial hearing officer before her employment may be terminated). (56.1 ¶ 142.) At the General Trial, which lasted approximately nine days, Norris was represented by counsel, who presented witnesses and submitted evidence on her behalf (56.1 ¶¶ 143-144.) Norris testified at the General Trial that she believed that Moats took disciplinary action against her in retaliation for a memo Norris wrote to a NYCHA officer, asking to be assigned to a different supervisor. (56.1 ¶ 145.)
The hearing officer, after reviewing all the evidence, found that:
[Norris] has been found guilty of all the charges brought against her. . . . [T]he most serious involves her failure to oversee operations at the Community Centers assigned to her, her failure to meet and consult with Community Center staff, and her failure to conduct regular site inspections satisfactorily. Simply stated, she did not do her job. In addition, she has shown a cavalier attitude toward the job and her superiors. It is clear from the evidence that she cannot take direction or follow instructions. She exhibits a devil-may-care attitude. I seriously doubt she will improve or change her ways.
(Def. Mem. 7.) In a fifty-six-page Report and Recommendation dated March 1, 2000, the hearing officer recommended dismissal, which recommendation was adopted by the NYCHA Board. (56.1 ¶ 146-188.) Pursuant to that finding, Norris' employment was terminated effective March 29, 2000. (56.1 ¶ 189.)
Norris, through the union of which she was a member, Social Service Employees Union Local 371 ("Union"), appealed the hearing officer's decision to the New York City Office of Collective Bargaining, and the appeal was submitted to arbitration. (56.1 ¶ 190.) On September 21, 2002, the arbitrator issued an award sustaining the hearing officer's decision in all respects, concluding that she was "compelled to find that [Norris simply[,] repeatedly, and continuously failed to follow her Supervisor's ongoing and specific directives." (56.1 ¶¶ 191-192.) The arbitrator went on to identify elements of the record upon which her decision was based. She noted that the record reflects that "at least eleven (11) verbal and/or written warnings [were] given to [Norris]," but that "the same type of issues continued to occur, notwithstanding these explicit prohibitions involving her absenteeism and chronic lateness." (56.1 ¶ 193.) She observed that "the record is replete with [Norris'] failure to appear at various community centers and coordinate projects, a significant duty of a Community Coordinator," and agreed with the trial officer that Norris' "failure to do what she was paid to do is a pivotal reason" for the decision to terminate her employment. (56.1 ¶ 194.) She stated that "one of the more troubling charges was the incidents of July 29, 1998 and November 23, 1998" and declared, "This Arbitrator simply cannot condone rude, insubordinate behavior exhibited toward any supervisor, irrespective of one's provocation." (56.1 ¶ 195.) Noting that the standard arbitrators must apply in reviewing the recommendations of trial officers is the "substantial evidence" standard, the arbitrator concluded that "all six (6) Charges were substantiated, based upon the totality of the massive and repetitive evidence against [Norris]"; that the trial officer's findings were not arbitrary or capricious, but based on substantial evidence; and that "the determination for dismissal was lawful, proper and based on the preponderance of evidence as substantiated by [Norris'] egregious misconduct." (56.1 ¶¶ 196-197.)
On or about December 10, 2002, the Union filed a Petition to Vacate the arbitral award, pursuant to Article 75 of the New York Civil Practice Law and Rules. (56.1 ¶ 198.) In a decision dated February 24, 2004, the New York Supreme Court, New York County (Braun, J.), declined to vacate the award and instead confirmed it. ( Soc. Serv. Employees Union Local 371 v. New York City Hous. Auth., Index No. 127145/02.)
Norris' Complaints of Discrimination Against NYCHA and Its Employees
On March 12, 1998, Norris filed a verified complaint with the New York City Commission on Human Rights ("NYCCHR") against NYCHA, Lozano, and two other NYCHA employees: Eunice Marchiselli, the Deputy Director of the Bronx Borough Office of the Community Operations Department and Lozano's direct subordinate ("Marchiselli"); and Irving Anglada, an investigator with the DEO ("Anglada"). (56.1 ¶ 200.) In her complaint (as amended March 26, 1998), Norris alleged that that Lozano made disparaging remarks about a group of African-American women in Norris' presence; that Anglada subjected Norris to disparate treatment by aggressively attempting to discourage her from testifying in three complaints of workplace discrimination by NYCHA employees; that Lozano and Marchiselli subjected Norris to disparate treatment because of her race and gender, and because of her complaints about discriminatory practices of NYCHA employees. (56.1 ¶¶ 201; Decl. of Corina L. Leske in Supp. of Def.'s Mot. for Summ. J. ("Leske Decl."), Ex. K.) In June 1999, Norris wrote a memo to the DEO, alleging that she had been discriminated against in violation of the Pregnancy Discrimination Act's amendment to Title VII, and sent a copy of the memo to the NYCCHR. (56.1 ¶¶ 202-203.) The DEO informed Morris in July 1999 that it would defer its investigation of the allegations contained in the memo to the NYCCHR. (56.1 ¶¶ 204.) In March 2002, the NYCCHR dismissed Morris' complaint, finding a lack of probable cause in light of Norris' termination for cause in March 2000 following the General Trial and Norris' "documented history of poor work performance with NYCHA." (56.1 ¶¶ 205-206.) The EEOC adopted the NYCCHR's findings. (56.1 ¶¶ 207.)
The Instant Allegations
In the instant amended complaint, Norris alleges violations of Title VII and 42 U.S.C. § 1981 based on the same facts of discriminatory treatment as contained in her amended verified complaint to the NYCCHR. (Compl. ¶¶ 14-21.) In addition, Norris alleges further discriminatory treatment, including retaliation at the hands of Moats ("and with the knowledge and/or at the direction of Lozano") for her filing of the NYCCHR complaint, and the termination of her employment for discriminatory reasons. (Compl. ¶¶ 23, 25-26.) The treatment Norris complains of includes (1) Lozano's and Marchiselli's telling Norris' co-workers that she was a "troublemaker" and could not be trusted, and instructing them not to go to lunch with her, whereas non-African-American employees and/or male employees were not so treated (Compl. ¶ 14, 16); (2) Lozano's and Marchiselli's failing to provide Norris with adequate training and orientation, whereas non-African-American employees and/or male employees were not so treated (Compl. ¶ 14); (3) Lozano's and Marchiselli's withholding work-related transportation services from Norris, whereas non-African-American employees and/or male employees were not so treated (Compl. ¶ 16); (4) Lozano's making disparaging remarks in reference to a group of African-American women in Norris' presence (Compl. ¶ 15); (5) Lozano's and Marchiselli's falsely charging Norris with "misuse of NYCHA's time" and maintaining a disorderly office, and preventing Norris from using certain office equipment outside her immediate workplace, in retaliation for filing the NYCCHR complaint (Compl. ¶ 21); and (6) Moats' falsely reporting that Norris was absent from work, violating NYCHA procedures in order to harm Norris, and falsifying Norris' time sheets to harm Norris (Compl. ¶ 23). In addition to the foregoing, the amended complaint alleges that Norris' termination in March 2000 following her General Trial was "without good cause" and constitutes an act of discrimination and retaliation. (Compl. ¶¶ 25, 26, 36.)
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment"; "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee"; or "to discriminate against any individual . . . in admission to, or employment in, any program established to provide apprenticeship or other training" "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. It also prohibits employers from discriminating against any individual "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3.
Section 1981 of Title 42 of the United States Code guarantees 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, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." 42 U.S.C. § 1981(a). To establish a § 1981 claim, plaintiff must show that: (1) she is a member of a racial minority; (2) NYCHA intended to discriminate against her on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in § 1981. Lauture v. Int'l Bus. Machs. Corp., 216 F.3d 258, 61 (2d Cir. 2000).
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R.Civ.P. 56(c)). In reviewing the record, the district court must assess the evidence in "a light most favorable to the nonmoving party" and resolve all ambiguities and "draw all reasonable inferences" in its favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
An alleged factual dispute between the parties will not by itself defeat a motion for summary judgment, since "the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Id. at 256; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A fact issue is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 248). "A fact is `material' if it might affect the outcome of the suit under governing law." Id. (quoting Anderson, 477 U.S. at 248).
Summary judgment in an employment discrimination action is appropriate where a plaintiff has "`failed to demonstrate that the defendant's asserted reason for [its adverse employment action] was pretextual.'" Umpierre v. SUNY Brockport, No. Civ. A. 95CV887RSPDS, 1997 WL 599314 (N.D.N.Y. Sept. 26, 1997) (quoting Holt v. KMl-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996)) (alteration in original); see also Chertkova v. Conn. Gen. Life Ins., 92 F.3d 81, 92 (2d Cir. 1996) ("[T]o defeat a defendant's properly supported motion for summary judgment, a plaintiff must show that there is a material issue of fact as to whether (1) the employer's asserted reason for discharge is false or unworthy of belief and (2) more likely than not the [unlawful basis] was the real reason for the discharge.") (alteration in original). Because employment discrimination actions often present factual issues as to the presence or absence of discriminatory intent that are not appropriately resolved at the summary judgment stage, courts must exercise caution in such cases and grant this remedy only when "no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight." Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994).
B. Timeliness of Claims
Under 42 U.S.C. § 2000e-5(e)(1), a party seeking to complain of employment discrimination pursuant to Title VII must file a charge with the EEOC within 180 days after the alleged unlawful employment practice occurred. However, if the party has first instituted proceedings with a state or local agency authorized to address claims of employment discrimination, the party must file the EEOC charge within 300 days after the alleged occurrence. Defendant argues that any allegations of events having taken place more than 300 days before Norris' filing of her complaint with the NYCCHR on March 12, 1998, are time-barred. Defendant misstates the requirement of 42 U.S.C. § 2000e-5(e)(1), since it is the timing of the EEOC filing, not the NYCCHR filing, which determines the timeliness of the allegations. Nowhere in the record is the date of the EEOC filing established, however, so it is difficult to determine what allegations would be time-barred. If it is assumed that the NYCCHR and EEOC filings were simultaneous on March 12, 1998, the only discriminatory or retaliatory incidents that the court may consider are those that allegedly took place within 300 days prior to March 12, 1998 that is, on or after May 16, 1997. C. Election of State Law Remedies
Plaintiff could not have invoked the "continuing violation" doctrine as a basis for including pre-May 16, 1997 allegations. Under this doctrine, otherwise untimely allegations would be actionable if they are "in furtherance of an ongoing policy of discrimination" in a case involving "specific discriminatory policies or mechanisms such as discriminatory seniority lists or discriminatory employment tests." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993). Further, otherwise time-barred claims may be considered when "specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001). However, in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Supreme Court held that the continuing violation doctrine is inapplicable to a series of discrete discriminatory acts. Under settled Second Circuit law, employment actions such as "discriminatory transfers, job assignments and non-promotions, and failures to compensate adequately" are discrete discriminatory acts that do not constitute a continuing violation." Bailey v. Synthes, 295 F. Supp.2d 344, 354 (S.D.N.Y. 2003). The acts alleged to have occurred prior to May 16, 1997 include (1) NYCHA's failure to provide Norris with orientation or a job description upon her transfer to the Bronx Community Operations office (Compl. ¶ 14); (2) the allegedly improper disciplinary action taken against Norris for "misuse of NYCHA's time" after the April 11, 1997 incident involving Norris' and three co-workers' hours-long absence from work (Id. at ¶ 16); and (3) disparaging comments made by Lozano and Marchiselli about Norris made prior to May 16, 1997 (Id. at ¶¶ 14, 16). None of these acts can be construed as "continuing violations" as defined in our jurisprudence, and the court therefore declines to apply this doctrine here.
In addition to federal causes of action under § 1981 and Title VII, Norris also brings a pendent state law claim pursuant to New York State Human Rights Law ("HRL"), Article 15 of the New York Executive Law, § 290 et seq. Section 296(a) defines employment discrimination based on the "age, race, creed, color, national origin, sexual orientation, military status, sex, disability, genetic predisposition or carrier status, or marital status of any individual" as unlawful, and § 296(e) forbids retaliation against employees who have complained of or opposed discriminatory practices. The New York State legislature has restricted the ability of individuals to bring suit based on HRL violations via an "election of remedies" provision, which provides in relevant part that:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages . . . unless such person had filed a complaint hereunder or with any local commission on human rights . . . provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division. . . . A complaint filed by the equal employment opportunity commission to comply with the requirements of 42 U.S.C. § 2000e-5(c) and 42 U.S.C. § 12117(a) and 29 U.S.C. § 633(b) shall not constitute the filing of a complaint within the meaning of this subdivision.
N.Y. EXEC. LAW § 297(9) (McKinney 1993). The import of this provision has been succinctly articulated in prior case law: "[A] person claiming to be aggrieved by an unlawful discriminatory practice may seek relief either from a court of appropriate jurisdiction or from the [New York State Division of Human Rights] or any local commission on human rights, but not both." Clements v. St. Vincent's Hosp. Med. Ctr., 919 F. Supp. 161, 164 (S.D.N.Y.1996); see Moodie v. Fed. Reserve Bank, 58 F.3d 879, 882-83 (2d Cir. 1995) (citing Marine Midland Bank, N.A. v. New York State Div. of Human Rights, 75 N.Y.2d 240, 245, 552 N.Y.S.2d 65, 66, 551 N.E.2d 558, 559 (1989); Pan Am. World Airways, Inc. v. New York State Human Rights Appeal Bd., 61 N.Y.2d 542, 548, 475 N.Y.S.2d 256, 259, 463 N.E.2d 597, 600 (1984). The election applies equally to HRL claims brought in New York courts and to such claims brought as pendent claims in federal courts. See Collins v. Mfrs. Hanover Trust Co. 542 F. Supp. 663, 672-73 (S.D.N.Y. 1982).
Norris' filing of the complaint did not fall into any of the exceptions to the election of remedies provision. The complaint was not "filed [with the NYCCHR] by the equal employment opportunity commission to comply with" statutes governing the EEOC, but was filed by Norris directly with the commission; moreover, the complaint was dismissed rather than being disposed of in any of the three ways described in the provision that would provide an exception to the election of remedies. Therefore, her claims under the HRL are barred, and only the claims under federal law remain.
D. Title VII Standards
In Title VII employment discrimination and retaliation cases, courts apply the three-step burden-shifting analysis set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Sumner v. U.S. Postal Serv., 899 F.2d 203, 208 (2d Cir. 1990). According to this three-step analysis, the plaintiff is first required to make out a prima facie case. To establish a prima facie case of employment discrimination, the plaintiff must show 1) membership in a protected class, 2) qualification for the position and/or satisfactory job performance, 3) termination from employment or other adverse employment action, and 4) that the adverse employment decision was made under circumstances giving rise to an inference of unlawful discrimination. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997); Thornley v. Penton Publ'g, Inc., 104 F.3d 26, 30 (2d Cir. 1997).
Plaintiff's burden of making out a prima facie case of retaliation is similar. `To establish a prima facie case of retaliation under Title VII, a plaintiff must show (1) that she was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that the employer was aware of that activity; (3) that she suffered adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse action." Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 79 (2d Cir. 2001) (internal punctuation omitted); accord Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d Cir. 2003); Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292(2dCir. 1998).
Since the showing of intentional discrimination and retaliation for § 1981 purposes mirrors the showing required for Title VII claims based on race discrimination and retaliation, the court assumes that a showing of the former would be satisfied by a showing of the latter. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (§ 1981 discrimination claims are analyzed under the same legal framework as claims brought under Title VII); Taitt v. Chem. Bank, 849 F.2d 775, 777 (2d Cir. 1988) ("The elements required to make out a claim of retaliatory discharge under 42 U.S.C. § 1981 are the same as those required to make out such a claim under Title VII.").
Second, once plaintiff has made out her prima facie case, defendant must articulate some legitimate and nondiscriminatory or non-retaliatory reason for its action. McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. at 1824. Third, the burden ultimately shifts back to plaintiff, who "must adduce evidence sufficient to raise a fact issue as to whether the employer's reason was merely a pretext for retaliation." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (quoting Tomka v. Seller Corp., 66 F.3d 1295, 1309 (2d Cir. 1995) (internal punctuation omitted)); McDonnell Douglas, 411 U.S. at 807, 93 S.Ct. at 1827.
The court applies this analysis first to Norris' discrimination and retaliation claims relating to her termination, which comprise the gravamen of the complaint, and then to her other allegations of discriminatory and retaliatory conduct.
1. Norris' Termination Claims
Norris claims to have made out a prima facie case that discriminatory and retaliatory motives were behind her termination from NYCHA.
a. Norris' prima facie case
First, as to her discrimination claims, Norris argues that she has made out a prima facie case since (1) as an African-American woman, she is a member of a class protected by Title VII; (2) her job performance was satisfactory, because she "performed [her job] to NYCHA's satisfaction for a number of years" (PL Mem. 12); (3) termination from employment constitutes an adverse employment action; and (4) the record alleges various facts supporting an inference of discrimination, including (a) the disparaging comments Norris alleges her supervisors made about her to her co-workers, including comments that she was a "troublemaker" and comments about her "Afrocentricity," her manner of dress, her hairstyles, and her reading materials; (b) the disparaging comments allegedly made by Norris' supervisors in Norris' presence about the presidents of the NYCHA Tenant Associations, the majority of whom, according to Norris, are African-American women; (c) the disparaging comments allegedly made by Lozano to a female African-American NYCHA employee that she "should be washing walls" and was "stupid" and "too old to work," and Lozano's threats to write that employee up if she did not resign; (d) the comment allegedly made by Lozano at a staff meeting that African-Americans are "unconsciously incompetent" and that "even with training most of the Directors could not change this behavior"; (e) the disparaging comments allegedly made by Lozano to two of Norris' co-workers, both African-American women; (f) Moats' supervision of Norris, which Norris claims was unfair, unreasonable, arbitrary, and detrimental to her ability to do her job, and which she claims was unlike the supervision received from similarly situated male and/or non-African-American employees; and (g) the allegedly aggressive attempt by a DEO investigator to discourage Norris from testifying as a witness to at least three internal complaints of discrimination, and the investigator's refusal to investigate Norris' report to him of being retaliated and discriminated against by NYCHA and its employees.
Second, as to the retaliation claims, Norris contends that she has made out a prima facie case with the following facts: she complained to the NYCCHR about discriminatory treatment by co-workers at NYCHA, in retaliation for which Lozano schemed to have Norris terminated by reassigning her to a new supervisor who would closely scrutinize her work performance and look for excuses to discipline, reprimand, and ultimately fire her.
The threshold for a prima facie case is not intended to be difficult to meet. Mandell v. County of Suffolk, 316 F.3d 368, 378 (2d Cir. 2003); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001). It is only because the required showing is so minimal that the court may conclude that Norris had shown that her job performance was satisfactory. Norris began receiving counseling about and criticism of her work product and her work habits starting in 1994. Indeed, the record reflects that Norris' supervisor in her former position recommended that NYCHA take steps to terminate her employment for cause in 1995, and that only Norris' transfer within NYCHA prevented that proceeding. (56.1 ¶ 26-27.) Norris' frequent lateness, absences, visits to NYCHA sites other than her assigned worksite, failure to follow workplace procedures, and intransigence in the face of her supervisors' reprimands about these ongoing problems are well documented and were the basis of her decision to terminate her employment. That decision was found to be supported when appealed to an independent arbitrator. (56.1 ¶¶ 190-197.) Further, the NYCCHR noted, in its dismissal of Norris' complaint for lack of probable cause, Norris' "long and documented history of poor work performance," which made it "clear that NYCHA terminated [Norris] for nondiscriminatory reasons." (56.1 ¶¶ 205-206.) However, the court accepts arguendo that Norris' twelve-year tenure at NYCHA is sufficient evidence to make out a prima facie case of her satisfactory work performance, and finds that Norris also makes the requisite showing that she is a member of a protected class and that her termination constituted an adverse employment action. The only element of Norris' prima facie case that remains at issue for the court is the causal element, i.e., did the circumstances of her termination give rise to an inference of discrimination?
Examination of Norris' prima facie case of retaliation follows a similar course. There is no question that Norris' complaint to the NYCCHR constituted protected activity under Title VII, that defendant knew of the complaint, and that termination was a negative employment action. It remains to be determined whether Norris has made a sufficient showing for the causal element of her prima facie case: Did defendant's retaliatory intent lead to Norris' termination?
The court finds that Norris has failed to make the requisite showing as to the causal elements of either her discrimination claim or her retaliation claim. Norris' employment was terminated after an impartial hearing officer, having heard testimony and been presented with evidence over the course of a full hearing lasting several days, concluded that Norris was guilty as charged of misconduct and incompetence. This determination was subsequently affirmed in a decision by an independent arbitrator, and plaintiffs petition to vacate this arbitration award was later denied by the New York State Supreme Court.
The Second Circuit has held that "where an employee's ultimate termination depends upon, and is allowed by, a decision of an independent and unbiased arbitrator based on substantial evidence after a fair hearing, the arbitration decision has probative weight regarding the requisite causal link between an employee's termination and the employer's illegal motive." Collins v. New York City Transit Auth., 305 F.3d 113, 115 (2d Cir. 2002); see also Halstead v. New York City Transit Auth., No. 99 Civ. 3450, 2003 U.S. Dist. LEXIS 26963 (E.D.N.Y. Dec. 30, 2002), aff'd, 78 Fed. Appx. 750, 2003 WL 22426979 (2d Cir. Oct. 22, 2003). Because such arbitration decisions are regarded as "highly probative of the absence of discriminatory intent," Collins, 305 F.3d at 119, in order to defeat a summary judgment motion a plaintiff must offer "strong evidence that the decision was wrong as a matter of fact-e.g. new evidence not before the tribunal-or that the impartiality of the proceeding was somehow compromised." Id. When such an independent decision is not impeachable by reason of factual error or impartiality, it can overcome any inference that a plaintiff's termination was the result of discrimination or retaliation, and therefore prevent the plaintiff from meeting even the low threshold of making out a prima facie case of a Title VII violation.
In opposition to defendant's motion for summary judgment, Norris has offered three affidavits, all sworn to by former NYCHA employees, which apparently were not presented during her General Trial This evidence includes (1) the affidavit of Ana Diaz Brewster, Norris' former supervisor at NYCHA and now retired, whose whereabouts allegedly were unknown to the plaintiff until after the General Trial and who therefore could not provide testimony in Norris' defense (Decl. of Victor H. Saldarriaga in Opp. to Def.'s Mot. for Summ. J. ("Saldarriaga Decl."), at ¶ 129(D)); (2) the affidavit of Lakisha Rosario, a former NYCHA employee who worked in the Bronx Borough Office in a clerical capacity in 1996 and 1997; and (3) the affidavit of Ethel Byrd, who worked as a Center Director at NYCHA's Davidson Houses from 1982 to 1999. These three affidavits comprise the bulk of Norris' evidence of defendant's discriminatory intent.
Defendant has moved in its reply papers to strike one of these affidavits in part and the other two in their entirety. Its arguments are discussed more fully in footnotes infra.
Since "a decision by an independent tribunal that is not itself subject to a claim of bias will attenuate a plaintiffs proof of the requisite causal link" of illegal discrimination," Collins, 305 F.3d at 119, plaintiff must show that these pieces of evidence constitute new evidence, strong enough to show that the decision of the hearing officer was factually erroneous, in order to overcome that decision's probative weight. After carefully considering the evidence in the record, the court is not persuaded that plaintiff has met her burden, or that the absence of any of these affidavits from Norris' General Trial led to an erroneous decision to terminate her employment.
The Brewster Affidavit
Brewster, a dark-skinned Hispanic woman, worked as a Borough Administrator at NYCHA from 1996 to 1998, and supervised Norris from about June 1996 until about May 1998. (Aff. of Ana Diaz Brewster in Opp. to Def.'s Mot. for Summ. J. ("Brewster Aff"), ¶¶ 3, 6, 7.) In her sworn affidavit, Brewster claims that although Norris was a good employee, Lozano put pressure on Brewster to find reasons to "write [Norris] up" for no reason "other than he did not particularly like her." (Brewster Aff. ¶¶ 8-13.) Brewster states that Lozano's animus toward Norris was evidenced by "some disparaging remarks Lozano made about Ms. Norris, including her `Afrocentricity,' manner of dress, hairstyles and reading materials." ( Id. at ¶ 13.) She further asserts that in retaliation for Norris' filing of a discrimination complaint with the New York City Commission on Human Rights, Lozano ordered Brewster to "strictly and unduly scrutinizef Ms. Norris' work performance and whereabouts" in order to create a "paper trail" that would make it possible eventually to terminate Morris, but that Brewster refused to do so. ( Id. at ¶¶ 15-16.) Brewster alleges that when she refused to comply, Lozano assigned Morris to a new supervisor, Moats, who "would have no problem in helping Lozano attain his illegal goal" of retaliation. ( Id. at ¶ 17.)
There are several problems with Brewster's affidavit. First, to the extent that Brewster is competent to testify that Lozano "did not particularly like" Morris, this does not show discriminatory intent. See Griffin v. Ambika Corp., 103 F. Supp.2d 297, 315 (S.D.N.Y. 2000) (concluding that hostility arising from a "clash of personalities," not based on racial animus, cannot form the basis for a Title VII complaint). Similarly, the allegation that Lozano disparaged Morris's Afrocentricity, manner of dress, hairstyles, and reading materials is not probative of racial or sex-based animus, since this allegation does not identify the content, place, or time of the remarks, and is devoid of details from which such animus could be inferred. See Batman v. United Parcel Serv., 194 F. Supp.2d 256, 264-65 (S.D.N.Y. 2002) (finding that comments and abuse about an African-American employee's dreadlocks, "while hurtful, sophomoric and insulting, are not racist in nature and do not support a reasonable inference of racial discrimination"); see also Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir. 2000) (stray comment usually not sufficient to show discrimination); Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 247 (S.D.N.Y. 2000) (stray remark, especially when remote in time from adverse employment action and not made in connection with that action, not sufficient to make out a prima facie discrimination case) (citing cases). This finding is supported by this court's determination in Sanders v. Mount Sinai Medical Center, No. 98 Civ. 828, 1999 WL 1029734 (S.D.N.Y. Nov. 10, 1999), that statements allegedly made by plaintiff's supervisor-an alleged comment about plaintiff's hairstyle being "nappy" and being a possible reason why plaintiff was "having problems" at work; a comment allegedly overheard by an unnamed source about African Americans' being lazy; and an alleged comment to the effect that Nelson thought she could eliminate individuals from her unit that she did not like-did not create a genuine issue of material fact in light of the lack of any evidence of pretext. Further, the court in Sanders found that the defendant's statements, "even when viewed in the light most favorable to plaintiff, [did] not show discriminatory animus, and/or could not be found by any reasonable trier of fact to be connected to plaintiff's final dismissal. Plaintiff's dismissal occurred after a series of events where plaintiff's performance was found not to be satisfactory, and numerous nursing professionals concurred in the decision to terminate her." Id. at *7. By the logic articulated in Sanders, it is clear that statements of the kind alleged by Norris, especially when lacking any causal link to her termination, cannot overcome defendant's strong showing that Norris' termination was due to her unsatisfactory work performance.
A more serious flaw in Brewster's affidavit is its claim that Moats was assigned to supervise Norris in May 1998, after Norris first filed her complaint (on March 12, 1998), and for the specific purpose of having Norris fired in retaliation for filing that complaint (Brewster Aff. at ¶ 15). However, it is undisputed that Lozano and another supervisor made the decision to reassign Norris to Moats in February 1998, weeks before she filed the complaint. And Norris herself documented this development in her personal diary on March 9, 1998, three days before filing her complaint. (56.1 ¶¶ 112-113.) Therefore, there can be no causal connection between Norris' filing of the complaint and Lozano's alleged scheme to reassign Norris to Moats' supervision in order to facilitate Morris' termination. The incontestable inconsistencies in Brewster's affidavit negate the inference of retaliation that plaintiff seeks to draw.
This deficiency is compounded by the fact that Brewster's allegations about Lozano's retaliatory motive are undermined by Norris' own sworn testimony. At her General Trial, Norris testified that she felt that Moats' disciplinary action toward her "was retaliation for a memo I had written [to Pam Fisher, Assistant Deputy General Manager of NYCHA, asking to be reassigned from Moats to a different Borough Administrator]." (56.1 ¶ (145.)
Moreover, Brewster's statement regarding Lozano's desire to go on a "witch hunt" against Norris (Brewster Aff. ¶ 15) does not on its face purport to be a reference to any statement or admission made by Lozano. Rather, it appears to be her own inference as to Lozano's state of mind. This statement is both inadmissible and unsupported by any corroborating evidence, and is flatly denied by both Lozano and Moats. Both Moats and Lozano assert that Lozano did not direct Moats to discipline Norris but only approved Moats' recommendation to proceed with a General Trial against Norris (Lozano Aff. ¶¶ 46-48; Moats Aff. 38-40), and plaintiff has not controverted these statements.
The same holds true for Brewster's assertions about the friendship between Lozano and Moats, and about the purpose of Moats' assignment as Norris' supervisor being to help Lozano "get rid of Norris in retaliation for her complaint (Brewster Aff. ¶ 15): lacking any explicit basis or substance, these assertions are at best speculative and do not constitute admissible evidence of discrimination. The Rosario Affidavit
According to Fed.R.Evid. 602, "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed.R.Civ.P. 56(e)
Lakisha Rosario, an African-American woman, generally asserts in her affidavit that she left NYCHA's employ "because of [Lozano's] unfair treatment of me" and "because Lozano used race, national origin, color or gender to determine how an employee would be treated." (Aff. of Lakisha Rosario in Opp. to Def.'s Mot. for Summ. J. ("Rosario Aff."), ¶¶ 1, 3, 26.) The specific allegations arguably relevant to Morris' discrimination claims include (1) allegations that Lozano was rude to her ( Id. at ¶¶ 7, 9) and failed to promote her in preference to Hispanic employees, including one female Hispanic employee whom Rosario implies was romantically involved with Lozano ( Id. at ¶¶ 8, 10, 12-18, 26); (2) an allegation that at one staff meeting, Lozano responded to Morris' request that he not make stereotypical statements against Black women by ending the meeting ( Id. at ¶ 24), and that in general Lozano "did not show any respect for Ms. Norris" at staff meetings and that "he would purposefully change the meaning of the words just to ridicule and harass her" ( Id. at 25); (3) an allegation that another employee, Lina Vasquez, told Rosario that on or about January 1997 Lozano had instructed Vasquez "not to go out to lunch with the African-American employees" ( Id. at ¶ 11); and (4) an allegation that Rosario filed a discrimination complaint with NYCHA against Lozano, for which Norris served as a witness ( Id. at ¶¶ 5, 19). provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Defendants have moved to strike portions of Brewster's affidavit to the extent that it asserts facts apparently not within Brewster's personal knowledge, and to the extent that it relies on conclusory, legal, inflammatory, unspecific, or hearsay statements. The court relies for its factual determinations only on competent and admissible evidence, and disregards those portions that do not meet the standards prescribed by the federal rules.
Were Rosario herself a plaintiff in an employment discrimination action, her allegations of discriminatory actions by Lozano would probably not suffice to make out a prima facie case. This is so because rudeness without any evidence of discriminatory intent does not constitute discrimination, and because disparate treatment of employees in the workplace is not sufficient evidence of discrimination if the two employees are not similarly situated. See Taylor v. Local 32A Serv. Employees Int'l Union, 286 F. Supp.2d 246, 255 (S.D.N.Y. 2003) (finding that because plaintiff and other employees were not similarly situated, a difference in their workplace treatment was not sufficient evidence of discrimination to satisfy the third step of the McDonnell Douglas analysis). The employee whose treatment Rosario contrasts to her own, Johnnette Laudun, was not similarly situated to Rosario: the record shows that she had a different job title, different job description, and different job qualifications, so her promotion over Rosario is not indicative of discrimination. (Supplemental Aff. of Ernesto Lozano in Supp. of Def's Mot. for Summ. J. ("Lozano Supp. Aff"), ¶¶ 13-14.) Furthermore, Rosario's insinuations that Lozano gave Laudun preferential treatment because the two were romantically involved are not probative of discrimination. A fortiori, Rosario's charges of discrimination do not carry probative weight as to Morris' claims.
Defendants move to strike Rosario's affidavit on this ground, as well as on the grounds that it contains (1) allegations that are apparently not within Rosario's personal knowledge; (2) inadmissible hearsay; and (3) "salacious innuendo." To the extent that the affidavit does not comply with Rule 56(e), the court disregards it; see infra and footnote 9, supra.
Rosario's allegations regarding Lozano's behavior toward Norris lack the specificity required to support a claim of discrimination. If, as Rosario claims, Lozano ended a meeting on an unspecified day-it is not clear from her affidavit that he ended it early, abruptly, or with any particular attitude-after Norris commented on his allegedly stereotypical remark, it would not be not indicative of anything at all. The other general allegation regarding Lozano's disrespectful treatment of Norris during meetings is not admissible evidence, because it lacks specificity both as to particular incidents and as to the substance of Lozano's words or actions.
Rosario's allegation that another employee told her that Lozano instructed that employee not to eat lunch with African-American employees is pure hearsay and therefore does not constitute admissible evidence. Moreover, Norris testified that Lozano made these comments because he disapproved of her union activities, not because she is an African-American woman. (56.1 ¶¶ 274, 280, 285, 292, 301.) Finally, neither Rosario's filing of a discrimination complaint nor Norris' participation as a witness is probative of anything, since Rosario does not state what the outcome of the complaint was. In sum, Rosario's affidavit contains little if any probative evidence that could contribute toward a finding that the hearing officer's decision was erroneous as a matter of fact.
The Byrd Affidavit
Ethel Byrd's affidavit contains the following allegations: (1) Lozano told Byrd that she was "stupid" and "too old to work," that he would write her up if she did not resign, and that she should be washing walls (Aff. of Ethel Byrd in Opp. to Def.'s Mot. for Summ. J. ("Byrd Aff"), ¶¶ 4, 6); (2) that Byrd was warned by "administrators" not to talk to Norris, her Union Delegate, about Housing Authority complaints (Byrd Aff. ¶ 5); and (3) at a February 1999 staff meeting attended by Byrd, Lozano, and Norris, "Lozano stated that most of African-Americans are unconsciously incompetent. Lozano also added that even with training, most of the Directors could not change that behavior" (Byrd Aff. ¶ 8). While the first two allegations are not probative of discriminatory animus toward Norris, since nothing in Lozano's alleged remarks expresses or apparently implies any reference to race or gender, the third allegation may be. Yet the court notes that Byrd's account of this event differs markedly from that given in plaintiff's own deposition testimony. In her deposition testimony, Norris describes the same staff meeting without mentioning that Lozano had used racist language. Instead, Norris explains that "everyone was pretty upset" about a visual aid or teaching tool Lozano used in the meeting, which diagrammed "the unconscious/incompetent and the conscious/competent and some people who are unconscious/competent." (Leske Decl., Ex. M. at 392.) Norris stated in her deposition, "I raised my hand and said, Ernesto, the presentation makes us feel like there's no way to change because either you're conscious and incompetent, you're unconscious and competent and, you know, where do you go from there." ( Id.) Norris further explained that "the majority of the staff that are black and Latino at the time, and so they took it as a very racist comment." ( Id. at 394.)
It is indisputable that, while Norris alleges that others construed Lozano's comments as racist, she never alleged that Lozano actually made racially derogatory remarks. It would be peculiar in the extreme for a plaintiff in an employment discrimination case to describe in sworn testimony an event at which she was an active and alert participant, and at which her supervisor made racially offensive comments to a group, and to omit to mention those racist comments. Norris' failure to mention any such comments either in her complaint or in her deposition-particularly in light of the fact that her allegations include no other examples of overtly racist remarks-throws Byrd's allegations into serious doubt. While credibility determinations are the province of the trier of fact, not of the court in deciding a motion for summary judgment, it is well settled that a party may not create an issue of fact through an affidavit that disputes prior deposition testimony. Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987) ("It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment."); Perma Research Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) ("If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact."). This court has applied this rule to situations in which plaintiff's deposition testimony is contradicted by affidavits of plaintiff's co-workers submitted in opposition to a motion for summary judgment. See Loucar v. Boston Mkt. Corp., 294 F. Supp.2d 472, 478 n. 1 (S.D.N.Y. 2003). Byrd's testimony about Lozano's comments at the staff meeting shall therefore be disregarded, and the Byrd affidavit is without probative value as to Norris' discrimination claims.
Moreover, defendant puts in evidence an anonymous letter allegedly written to former Mayor Rudolph Giuliani regarding that meeting (Supplemental Aff. of Ernesto Lozano in Supp. of Def.'s Mot. for Summ. J. ("Lozano Supp. Aff."), Ex. F) that complains about Lozano's use of the diagram but does not mention any implicit racism, much less the use of any racist language. While continually mindful of the need for the court to abstain from passing on issues of fact in the summary judgment context, the court finds the conspicuous absence of any complaints of racism in the anonymous letter further indication that Byrd's affidavit is submitted to create a "sham issue of fact."
Assuming arguendo that Lozano made an explicitly racist remark to a meeting of subordinates (the majority of whom were African-American), such remarks standing alone cannot establish discrimination. Woroski v. Nashua Corp., 31 F.3d 105, 109-10 (2d Cir. 1994), abrogated on other grounds (while a stray remark constitutes "some evidence" of discrimination, it is not sufficient to withstand a properly supported motion for summary judgment).
Defendant moves in its reply papers to strike Byrd's affidavit in its entirety on the grounds that plaintiff's failure to disclose Byrd's identity at any point during discovery violates Fed.R.Civ.P. 37(c)(1), which provides that "[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing." While Rule 37(c)(1) "provides a self-executing sanction for failure to make a disclosure required by Rule 26(a) . . . [and] prevents a party from using as evidence any witnesses or information that, without substantial justification, has not been disclosed as required by Rules 26(a) and 26(e)(1)," FED. R. Civ. P. 37 advisory committee's notes (1993 Amendments, Subdivision (c)), failure to comply with Rule 26(a) does not always provide a ground for preclusion or other sanction under Rule 37(c)(1). Preclusion is appropriate by the terms of the rule only if the failure to disclose is "without substantial justification" and not "harmless." FED. R. Civ. P. 37(c)(1). Because the court, having disregarded portions of Byrd's affidavit, deems the remaining portion harmless, it declines to impose the "drastic remedy" of Rule 37 sanctions. See Commercial Data Servers, Inc. v. Int'l Bus. Machs. Corp., 262 F. Supp.2d 50, 62 (S.D.N.Y. 2003); Grdinich v. Bradlees, 187 F.R.D. 77, 79 (S.D.N.Y. 1999).
Because the court finds that none of the putative "new evidence" proffered by plaintiff, individually or collectively, satisfies the "strong evidence" standard set forth in Collins and Halstead, plaintiff has failed to make out a prima facie case of discriminatory or retaliatory termination.
b. Defendant's Showing of Legitimate Purpose
Even assuming arguendo that Morris were able to make out her prima facie case of discrimination and retaliation as the reason for her termination, defendant has more than borne its burden under the second prong of the McDonnell Douglas analysis by demonstrating a legitimate, nondiscriminatory purpose for Norris' firing. It is beyond question that defendant has done more than merely articulate a legitimate, nondiscriminatory reason for terminating Norris's employment, since the record is replete with evidence that Norris was fired because her job performance was unsatisfactory. The impartial hearing officer found the evidence solid enough to find Norris guilty of all six charges brought against her after a hearing lasting nine full days, at which Norris was represented by an attorney who presented witnesses and evidence in her defense. (56.1 ¶¶ 142-144, 146-187.) The recommendation of the hearing officer that Norris' employment be terminated was adopted by NYCHA's Board (56.1 ¶ 188), and a neutral arbitrator sustained the decision in all respects, concluding that the charges "were substantiated, based upon the totality of the massive and repetitive evidence against [Norris]" (56.1 ¶ 190-197). Morris' motion to vacate the arbitration award was denied by the New York State Supreme Court. The NYCCHR dismissed Morris' discrimination complaint, finding that Morris "has a long and documented history of poor work performance with NYCHA. Having had her day in court, and being found guilty of 101 charges ranging from insubordination to excessive absence (many of which were leveled by African American and Hispanic supervisors), it is clear that NYCHA terminated the Complainant for non-discriminatory reasons." (56.1 ¶ 205-206.) The EEOC adopted NYCCHR's findings. (56.1 ¶ 207.)
c. Morris' Showing of Pretext
Defendant having met its burden under the McDonnell Douglas analysis, it falls to plaintiff to show that defendant's reason for firing her was merely pretextual. See Burdine, 450 U.S. at 256, 101 S.Ct. at 1095 (plaintiff may meet its ultimate burden "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence") (citing McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825-26); St. Mary's Honor Or. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752 (1993) ("[A] reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason" (emphasis in original).); Quinn, 159 F.3d at 769 ("[I]f the defendant meets its burden, plaintiff must adduce evidence sufficient to raise a fact issue as to whether the employer's reason was merely a pretext for retaliation.") (quoting Tomka, 66 F.3d at 1309) (internal punctuation omitted). This plaintiff has not done and cannot do. The showing she makes in support of her claim that discrimination was behind her termination is simply too insubstantial to overcome the overwhelming evidence that defendant's termination of plaintiff was motivated not by discrimination but by its dissatisfaction with her work performance. Even if evidence adduced by plaintiffs were sufficient to create an inference that Lozano and/or Marchiselli were prejudiced against certain African-American women, this inference would be undermined by other uncontroverted facts. First and foremost is the fact that the Bronx Borough Office was undisputedly staffed during Norris' tenure by almost equal numbers of African-American and Hispanic employees, none of whom is alleged to have been terminated for discriminatory reasons. (56.1 ¶¶ 51-85.) See Carr v. WestLB Admin., Inc., 171 F. Supp.2d 302, 308 (S.D.N.Y. 2001) (discrimination claims undermined by "defendant's uncontroverted evidence that almost half of plaintiff's former coworkers are [in the same protected class]"). About half of those employees who performed the same duties as Norris were African-American (56.1 ¶¶ 68, 71, 72, 73, 76, 77, 78, 79, 82, 83, 84.) Many of the African-American women on the staff worked in supervisory and responsible positions, including Borough Administrator Moats, an African-American woman, and three other African-American women who also served as Borough Administrators. (56.1 ¶¶ 59-85.) The fact that Norris' supervisor was an African-American woman like her makes "an inference of discrimination more difficult." Pesok v. Hebrew Union Coll-Jewish Inst. of Religion, 235 F. Supp.2d 281, 287 n. 5 (S.D.N.Y. 2002). Further, Norris was hired as a Community Coordinator by Lozano. This fact, too, undermines allegations that Lozano had discriminatory animus against Norris. Cf. Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997) ("[W]hen the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute . . . an invidious motivation."), cert. denied, 525 U.S. 936 (1998). Moreover, an African-American woman was undisputedly hired by Lozano to perform duties "nearly identical" to Norris' former duties in or around July 1999, while Norris was out on maternity leave and while the General Trial against her was still ongoing. (56.1 ¶ 84-85; Leske Decl. Ex. H.) See Spiegler v. Israel Disc. Bank of New York, No. 01 Civ. 6364, 2003 WL 21488040, *11 (S.D.N.Y. June 25, 2003) ("Where no evidence giving rise to an inference of discrimination has been presented, the fact that a plaintiff is replaced with an individual within his protected class undermines his attempt to establish a prima facie case of discrimination."), and cases cited therein. Further, while the record shows that at least one African-American woman besides Norris filed an internal complaint of discrimination with the DEO during Norris' tenure at the Community Operations Department (as did at least one Hispanic woman and one African-American man) (56.1 ¶ 303), there is no indication in the record that these complaints, which were undisputedly investigated, were substantiated (56.1 ¶¶ 303-319). In addition, as recounted supra, Norris had a long history of disciplinary problems with NYCHA, so it is difficult to find any causal link between her complaints to the NYCCHR in March 1998 and any more recent disciplinary action.
Furthermore, Norris has cited only a single instance in which Lozano made any comments about Norris herself. In that instance, Lozano allegedly made "disparaging comments about Ms. Norris, including her `Afrocentricity,' manner of dress, hairstyles and reading materials." (Brewster Aff. ¶ 13.) It is beyond question that manner of dress, hairstyle, and reading materials are not racial characteristics, even if associated for sociological or cultural reasons with certain racial or ethnic groups, and criticisms of such elements do not in themselves create an inference of discrimination. See Eatman, 194 F. Supp.2d at 262 (citing cases). Moreover, the vague and indeterminate nature of these comments renders them insufficient to overcome the strong showing by defendant that Norris' termination was based on a well-founded negative assessment of her work performance.
Even taking the available evidence in the light most favorable to plaintiff, therefore, it is at best colorable and not probative of discriminatory motive. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted" See Anderson, 477 U.S at 248 (citations omitted). Summary judgment is therefore appropriate as to Norris' claims of discrimination related to her termination.
Even less persuasive is Norris' claim of retaliation, since as the court observed supra, the undisputed evidence reveals the absence of a causal link between Norris' filing of her NYCCHR complaint and her termination. Even if Norris could make out her prima facie case with respect to this claim, she could not show that defendant's justification for her termination was pretextual given the nonexistence of any evidence that her complaint led to her termination. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001) (if defendant provides legitimate reason for its action, "plaintiff must point to evidence that would be sufficient to permit a rational factfinder to conclude that the employer's explanation is merely a pretext for impermissible retaliation."); accord Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 443 (2d Cir. 1999), Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998). The Second Circuit has observed that when a termination is based upon the undisturbed decision of a neutral factfinder, that impartial decision is probative of a lack of pretext in retaliation cases. Collins, 305 F.3d at 119 n. 1. This claim, too, is resolved in defendant's favor.
2. Norris' Other Claims of Discrimination and Retaliation
In addition to claims relating to her termination, Norris also asserts that several other adverse actions taken by defendant were the product of illegal discrimination or retaliation. As to unlawful discrimination, she alleges (1) that during her employment in the Community Operations Department, she was "subjected to a continuous course of harassment and acts tending to degrade and humiliate her" (Compl. ¶ 10); (2) that her supervisors once "made disparaging remarks, in the presence of Plaintiff, directed at a group of African American women affiliated with NYCHA" (Compl. ¶ 15); (3) that her supervisors told her co-workers that she was a "troublemaker" and could not be trusted, and instructed them not to socialize with her (Compl. ¶¶ 14, 16); (4) that her supervisors failed to provide her with adequate orientation and training (Compl. ¶ 14); (5) that she was "aggressively . . . discourage[d] from testifying as a witness to . . . internal complaints of discrimination" by a DEO investigator and that he "refus[ed] to investigate [Norris'] report to him of being subjected to ongoing retaliation and of having been otherwise discriminated against by the defendant and its employees" (Compl. ¶ 18); and (6) that her supervisors withheld from her "transportation services essential to the performance of her job" (Compl. ¶ 16).
As defendant notes in its reply brief, plaintiff did not address these claims in its opposing papers, and they should therefore be deemed conceded. (Defs'. Reply Mem. at 7.) Even if they were not so abandoned, however, they would not survive defendant's motion. For much the same reasons that the court found that Norris had failed to show either an inference of discrimination or any pretext in defendant's termination, probative evidence is lacking as to these claims as well. To the extent that she is able to substantiate any adverse employment actions taken by defendants against her, plaintiff has failed to marshal any evidence that discriminatory intent lay behind any of them. Her allegations of harassment, degradation and humiliation appear to be related primarily to Norris' interactions with Moats (an African-American woman), including the confrontation in the Bronx Borough Office on July 29, 1998; the telephone conversation of November 24, 1998; and the series of counseling memos Moats wrote to Norris (all detailed supra). None of these incidents has on its face a discriminatory aspect, especially in light of Norris' testimony at her General Trial that she attributed Moats' actions to other, nondiscriminatory motives. Moreover, in the context of the thoroughly documented disciplinary problems Norris experienced during her tenure at NYCHA, all these acts seem to be ascribable more to the escalating conflict between Moats and Norris over Norris' resistance to Moats' critical scrutiny. Nothing in these interactions, without more, creates an inference of discrimination.
Norris alleges, and defendant does not dispute, that on several occasions Lozano referred to a group of NYCHA Tenant Association presidents, most of whom were African-American women, as "bullies," "Bs" (allegedly to signify "bitches"), "difficult to work with," "aggressive," and "pushy" on several occasions in Norris' presence. (56.1 ¶¶ 271-272.) However, Norris does not allege that Lozano ever referred explicitly or irnpliedly to the racial or gender composition of the group of Tenant Association presidents, nor does she make any case for inferring that Lozano's comments referred or related to the race or gender of the group's members. Absent any indication that Lozano's critical remarks had any discriminatory inflection whatever, Norris' claims of discrimination on this set of facts remains mere speculation.
The remainder of Norris' claims of discrimination-that she was not given orientation or training, that Lozano and Marchiselli told Morris' co-workers that she was a "troublemaker" and instructed her not to go to lunch with her, and that a DEO investigator both discouraged Norris from testifying as a witness to co-workers' discrimination complaints made to the DEO and refused to investigate Norris' claims of retaliation (Compl. ¶¶ 17-18)-are not substantiated, and cannot give rise to an inference of discrimination. The undisputed evidence shows that Norris' co-workers in the Community Operations Department also did not receive the training or orientation Norris claims not to have received, (56.1 ¶¶ 213-214), and that Norris attended several workshops and training sessions in 1997 and 1998 (56.1 ¶¶ 215-218, 225-230, 232). Further, Norris offers only inadmissible hearsay evidence to show that Lozano or Marchiselli ever called her a "troublemaker" or told her co-workers that she could not be trusted (56.1 ¶¶ 276-292). Finally, Norris offers no evidentiary support for her allegations of misconduct on the part of the DEO investigator.
As to Norris' remaining retaliation claims, Norris alleges that (1) in retaliation for having voiced her objection to remarks made by Lozano about the NYCHA Tenant Association presidents in or around October 1996, Lozano told Norris' co-workers she was a "troublemaker," told them not to go to lunch with her, and withheld transportation services from her (Compl. ¶ 16); (2) in retaliation for having filed a complaint with the NYCCHR, Lozano falsely charged Norris with misuse of NYCHA's time, barred Norris from using certain office equipment, and falsely charged Norris with maintaining a disorderly office (Compl. ¶ 21); and (3) in retaliation for having filed the NYCCHR complaint, Moats (at the direction of Lozano) falsely reported that Norris was absent from work, suspended Norris from work without good cause, and falsified Norris' attendance records (Compl. ¶ 23).
The first two groups of retaliation claims do not suffer from the same causal deficiency that doomed Norris' termination-related claims, but this fact does not save these allegations from their other shortcomings. Norris has shown that she participated in a protected activity both when she protested what she perceived as a racially offensive remark, and when she filed a formal complaint with the NYCCHR; both formal and informal complaints of discrimination may constitute protected activity, so long as the plaintiff has a good-faith belief that the complained-of conduct or practice is unlawful. See Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134 (2d Cir. 1991) (finding that plaintiff's "good faith, reasonable belief that the underlying challenged actions of the employer violated" Title VII was enough to demonstrate protected activity); Kotcher v. Rosa Sullivan Appliance Ctr. Inc., 957 F.2d 59, 65 (2d Cir. 1992) (finding an informal complaint to supervisors of sex discrimination constituted protected activity). Norris has also shown both that her supervisors knew about Norris' informal direct complaints to them in 1996 and that they were aware of her March 1998 NYCCHR complaint. However, Norris has failed to show that the alleged acts of retaliation constitute an adverse employment action. In this Circuit, a plaintiff suffers an adverse employment action if she suffers a "materially adverse change in the terms or conditions of her employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). To constitute a "materially adverse change," an employer's action must be "more disruptive than a mere inconvenience or alteration of job responsibilities." Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (quoting Galabya, 202 F.3d at 640).
Norris' allegations about Lozano's and Marchiselli's "troublemaker" comments, discussed supra, are based on inadmissible hearsay, and cannot sustain Norris' retaliation claim here. Further, Norris' claims that "transportation services essential to the performance of her job" were withheld from her, and that she was barred from "utilizing essential office equipment in NYCHA's Bronx Borough Office," even if true, would not constitute a "material adverse change," since the record shows incontrovertibly, even when read in a light most favorable to Norris, that these were mere inconveniences.
First, most of the NYCHA developments in the cluster for which Norris was responsible were within a few blocks of each other and of the site where Norris had her office, so no transportation services would ordinarily be necessary. (56.1 ¶ 248.) Second, Norris had no driver's license or car for the majority of her time working in the Community Operations Department, so she would not have been able to use a NYCHA-owned car or get reimbursed for use of a personal vehicle for any work-related travel. (56.1 ¶¶ 236-238, 250-253.) Third, her supervisors often drove her to remote sites when necessary to perform her work. (56.1 ¶ 256.) It appears that on one occasion, Norris asked Moats to be reimbursed for carfare and was refused because the request was not properly made (56.1 ¶¶ 239-246.) Even if this refusal had been completely unreasonable, it would still remain a mere inconvenience. Fourth, it is undisputed that there was a telephone and a computer in her office and fax machines and a photocopier in one of the other nearby NYCHA facilities down the block, and she was able to send big copying jobs out when necessary. (56.1 ¶¶ 259-266.)
The third group of retaliation claims-relating to Moats' allegedly baseless complaints about Norris' performance-is subsumed within her retaliatory termination claim, inasmuch as these allegedly retaliatory acts led, according to Norris, to her termination and were the basis of her nine-day General Trial. The general and specific findings of misconduct by the hearing officer are highly probative of a lack of retaliatory intent on NYCHA's part, and Norris has made no showing to rebut this evidence or establish pretext. See discussion supra Section 1(a). E. Section 1981 Allegations
Moreover, to the extent that any of these alleged occurrences would constitute adverse employment actions, there is little if any evidence to indicate that they actually occurred. The record contains no evidence to support Norris' allegations that Lozano and Marchiselli falsely charged Norris with misuse of NYCHA's time or with maintaining a disorderly office, nor that Moats made a false report, intentionally violated procedures, or falsified any records. Indeed, as to the last of these allegations, the Office of the Inspector General at NYCHA investigated Norris' claim that Moats or someone at her direction had tampered with Norris' time records, and this claim was found to be unsubstantiated. (56.1 ¶ 209-210.)
For the same reasons that Norris has not made a sufficient showing to sustain her Title VII claims against defendant's motion for summary judgment, her 42 U.S.C. § 1981 claims also fail.
CONCLUSION
For the foregoing reasons, defendant's motion is hereby GRANTED in its entirety, and all claims are dismissed. The Clerk of the Court is directed to close this case.
SO ORDERED.