Summary
determining an intake questionnaire was not a charge where it was not supported by an affidavit, there was no "consent box" or indication the EEOC could disclose the plaintiff's identity, and no "unambiguous request" the employer "cease its alleged discriminatory practices" because there was no evidence of "intent" to activate the administrative process."
Summary of this case from Evans v. Excellus Health Plan, Inc.Opinion
08 Civ. 0185 (SHS) (KNF).
April 13, 2009
REPORT AND RECOMMENDATION
INTRODUCTION
Phillis Lu Simpson ("Simpson") brings this action against the City of New York Department of Housing Preservation and Development ("DHPD"), Shaun Donovan ("Donovan"), and Deborah Rand ("Rand"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e- 2000e-17 ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621- 634 ("ADEA"), the New York State Human Rights Law, New York Executive Law §§ 290- 297 ("NYSHRL"), and the New York City Human Rights Law, New York City Administrative Code §§ 8-101-131 ("NYCHRL"). The plaintiff alleges employment discrimination based on race, age, color and religion, and contends the defendants retaliated against her. Before the Court is the defendants' motion for summary judgment, made pursuant to Fed.R.Civ.P. 56. The plaintiff opposes the motion, through an affirmation and "memorandum of law."
The Court notes that Simpson's "memorandum of law" is devoid of citations to any case law.
BACKGROUND
The following facts are undisputed:Simpson was hired as a per diem attorney for DHPD, in October 2002, and, in July 2003, assumed the permanent position of Agency Attorney, Level III. In January 2004, the plaintiff was made supervising attorney for DHPD's anti-harassment unit; she remained with this unit from January 2004, until September 2006. On April 27, 2005, Simpson sent an e-mail message to Rand, DHPD Assistant Commissioner, Office of Preservation Services, requesting a promotion to Agency Attorney, Level IV, and an increase in salary to the maximum amount for that position. At her deposition, Simpson testified that, in response to her promotion request, Rand became angry with her, and this anger constituted discrimination. Simpson also testified that Rand denied her promotion request and this denial constituted race, age and gender discrimination, although Simpson was unaware of any employee who requested and received a raise from Rand. On April 29, 2005, Simpson sent an e-mail message to Matthew Shafit, DHPD General Counsel, and Rand apologizing for her promotion request. On May 16, 2005, Simpson filed an internal complaint of discrimination with DHPD's Equal Employment Opportunity Office ("EEO"), alleging she had been discriminated against, based upon her age, color, race and gender.
On August 15, 2005, Simpson entered into a Mediation Settlement Agreement ("the Agreement"), which resolved the issues raised in her EEO complaint. The Agreement's text reveals that Simpson agreed to: (1) withdraw her claims of discrimination arising between April and August 2005; and (2) refrain from instituting a lawsuit "in any court" based upon the alleged discriminatory acts that occurred between April and August 2005. In exchange, DHPD agreed to: (1) promote Simpson to the "office title of Director/Attorney-In-Charge of the Anti-Harassment Unit with an annual salary of $75,000 on her civil service line, Attorney Level III," and noted that this was both a promotion and salary increase; and (2) place Simpson within the Operations Division of the Office of Legal Affairs, and not place her "under the direct supervisory structure of the Deputy General Counsel for Litigation." At her deposition, Simpson testified that: (1) in April 2006, the Agreement was violated, because she was placed under the direct supervision of Rand; (2) in April 2006, she was not required to report directly to Rand, rather, she reported to Steve Meachem; and (3) at an unspecified time, Luiz Aragon ("Aragon"), DHPD Deputy Commissioner, Office of Preservation Services, required Simpson to report to Rand indirectly. Simpson also testified that Rand sent an e-mail message to her once, and the message constituted a violation of the Agreement. During the 2006 calendar year, while Simpson was employed as a supervising attorney in DHPD's anti-harassment unit, the New York City Office of Administrative Trials and Hearings ("OATH"), before whom Simpson and the attorneys she supervised litigated, disagreed with the position(s) advocated by Simpson, and her staff, in all but one case.
On July 7, 2006, Simpson filed a second complaint with EEO, alleging she was retaliated against, for filing her May 2005 EEO complaint, when Aragon met with Simpson and informed her he "was not going to support [her] in terms of better staff," and assigned more tasks for Simpson to complete. Simpson amended her second EEO complaint in August 2006, adding claims that Shaun Donovan, DHPD Commissioner, Aragon, Rand and Neil Coleman, DHPD Assistant Commissioner, Communications, retaliated against her by attempting to transfer Simpson to the Section 8 unit of the agency, and "by providing or allowing false information to be reported against [her] in the newspaper known as the Village Voice."
Simpson provided a copy of the article appearing in the "Village Voice." The article identifies Mark Hersh as "one of the city's worst landlords." Hersh's lawyer is quoted as saying that Rand "was 'a governmental bully, who deserves to be arrested,'" and that Rand was not the only "corrupt" official, but was part of a citywide conspiracy. Hersh's attorney represented that some DHPD officials supported granting a no-harassment certificate to Hersh. The article notes that a memorandum to Rand, written by Elizabeth Bolden, an assistant commissioner of DHPD's housing litigation division, supported granting such a certificate, and Bolden "made her recommendation based on a memo written by [DHPD's] attorney in charge of the . . . Anti-Harassment Unit, Phyllis Simpson, and 'other sources.'" The article states that Simpson's memorandum represented "that the state's Department of Housing and Community Renewal and [D]HPD's own SRO Compliance Unit 'had no information regarding harassment at the premises.'"
In September 2006, DHPD's anti-harassment unit was divided into a "review" unit and a "litigation" unit. On September 26, 2006, Simpson was assigned to the review unit; her litigation duties were assigned to an attorney in the litigation unit. At her deposition, Simpson testified that Donovan and Aragon discriminated and retaliated against her, on the basis of her age, by assigning her to the review unit, since the litigation unit was staffed by "younger, white, female attorneys." However, Simpson also stated she did not know the identities or ages of the attorneys assigned to the litigation unit, and did not know how many attorneys were assigned to that unit.
The plaintiff contends that, if she were Jewish, Rand's attitude toward her would have been different. Simpson testified, at her deposition, that Rand treated other employees differently, based upon their religion, as she required individuals to work on "their religious days," though Simpson refused to name, or otherwise identify, these individuals or whether they had requested "the day off for religious observance." Rand never denied Simpson the opportunity to take leave, on account of her religion; and Simpson does not allege either Donovan or Aragon discriminated against her, based upon her religion.
The date on which Simpson filed a charge of discrimination ("charge") with the United States Equal Employment Opportunity Commission ("EEOC") is disputed by the parties. The defendants have provided a copy of a charge, completed by Simpson, dated September 25, 2007. In this charge, Simpson alleges she was discriminated against, based upon her race, color, sex and age, and was retaliated against. In addition to the allegations described above, Simpson also noted that, on or about September 18, 2007, her supervisor, "Mr. Vance," advised her that "no employee under Mr. Aragon would be permitted to sign in for work before 8:00 a.m.," and that Simpson believed she was receiving disparate treatment, since "several employees outside of [her] unit who are under Mr. Aragon . . . ha[d] not been told that they could not sign in before 8:00 a.m. and they still come in at 7:30 a.m. and sign in at that time." Simpson also noted that, when she was transferred to the "review unit" in September 2006, her "work related communication with [her] former staff" was "cut off," and she was "forbidden to speak with other lawyers and . . . d[id] not have access to a Law Library as d[id] other attorneys on [her] job." Simpson received an EEOC Right to Sue letter, on or about November 27, 2007.
Simpson attached time sheets to her "memorandum of law" in opposition to the defendants' summary judgment motion, which record Simpson's arrival and departure from work, in one-week increments. The time sheets indicate Simpson was on "Flex Time: "8:00 AM — 10:00 AM." Simpson submitted six time sheets, for several weeks in 2007, which show Simpson's time of arrival ranged from 7:15 a.m. to 8:45 a.m.; the four 2008 time-sheets submitted show Simpson's time of arrival ranged from 8:00 a.m. to 9:00 a.m.
Simpson maintains that her "claims were originally filed with the EEOC on June 11, 2007." In support of that contention, Simpson attached to her affidavit in opposition to the defendants' motion, a copy of an EEOC Intake Questionnaire, dated June 11, 2007. In this document, Simpson provides: (1) names, addresses, telephone numbers and other identifying information for herself and DHPD; (2) information about her employment, including her start date, salary and the DHPD position titles she has held; and (3) the bases for her employment discrimination claims. Simpson provided the following about her claims of discrimination: (i) in April 2005, she was "told basically that [she] should not ask for [a] raise" and that doing so had made her supervisor angry; (2) from April 28, 2006, to the "present," she was "retaliated [against] because [she] filed [an] EEO complaint by [sic] [her] job responsibilities being taken away"; and (3) the claims raised are in the "Amendment to July 7, 2006 Retaliation complaint," a copy of which was attached to the intake questionnaire. Nothing in the record indicates Simpson provided an affidavit with her questionnaire. The EEOC questionnaire states: "Remember, a charge of employment discrimination must be filed within the time limits imposed by law" and "[u]pon receipt, this form will be reviewed to determine EEOC coverage" (emphasis omitted). Simpson also submitted a letter from the EEOC, dated January 22, 2007, which states: (1) "to begin the charge-filing process, please read and complete the entire questionnaire immediately and return it by mail to the field office"; (2) "[a] charge of discrimination must be filed with the EEOC within 180 days from the date of harm in order to protect your rights" and that this deadline "may be extended to 300 days if the charge is also covered by a state or local job discrimination law"; and (3) "[g]enerally, submission of this questionnaire will not meet all requirements for filing a charge," and that "this questionnaire will allow the EEOC to review your circumstances further and determine whether we can assist you."
In response to Simpson's questionnaire, the EEOC sent a letter to her, dated July 18, 2007, advising Simpson her claims were untimely and would not be investigated by the EEOC. The letter explained that, "a charge of employment discrimination must be filed with the EEOC within 300 days of your notification of the alleged discriminatory act," yet, the most recent discriminatory act discussed in the questionnaire was on "July 5, 2006." Simpson's questionnaire was received by the EEOC on June 15, 2007.
DISCUSSION
Standard of Review for Summary Judgment
Summary judgment may be granted in favor of the moving party "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), cert. denied, 524 U.S. 911, 118 S. Ct. 2075 (1998). When considering a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L. B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356).
The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). "A fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law. . . .' An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphasis omitted). The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor."Id. at 256, 106 S. Ct. at 2514. Summary judgment should only be granted if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
The defendants contend they are entitled to summary judgment because: (1) the court lacks subject matter jurisdiction over Simpson's religious discrimination claim, because she did not raise this claim in her EEOC charge; (2) Simpson's Title VII and ADEA claims accruing prior to November 29, 2006, are time-barred, because they accrued more than 300 days before the charge was filed; (3) Simpson cannot establish a prima facie case of race, color, gender or age discrimination; (4) Simpson cannot establish a prima facie case of retaliation, because she has not demonstrated a casual connection between the protected activity of complaining to EEO and the reorganization of DHPD's harassment unit; and (5) the defendants had legitimate, nondiscriminatory, reasons for their actions, and Simpson cannot show that these reasons were pretextual.
Subject Matter Jurisdiction
"A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge." Butts v. City of New York Dep't of Housing Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993); see also Miller v. Int'l Telephone and Telegraph Corp., 755 F.2d 20, 23 (2d Cir. 1985) ("[n]o action based on a claim of age discrimination may be brought in federal court unless the claim was properly raised with the EEOC, i.e., within the permissible time limit for filing the claim with the EEOC");Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) ("the administrative exhaustion requirement is the same under the ADEA as it is under Title VII, [and the "reasonably related"] . . . exception[] also appl[ies] to claims brought pursuant to the ADEA"). "This exhaustion requirement is an essential element of Title VII's statutory scheme." Butts, 990 F.2d at 1401; see also Holowecki v. Fed. Express Corp., 440 F.3d 558, 567 (2d Cir. 2006) (finding that "administrative exhaustion is an important aspect of ADEA"). Although it has been found that claims not raised in an EEOC charge may be "reasonably related" to the allegations in the charge so as to permit their inclusion in a federal civil action, see Butts, 990 F.2d at 1402-03, "[t]he courts will not permit a claim that is based on a wholly different type of discrimination to be brought if it was not initially asserted in the EEOC charge," Peterson v. Ins. Co. of N. Am., 884 F. Supp. 107, 109 (S.D.N.Y. 1995).
In the case at bar, Simpson's EEOC filings alleged claims of discrimination based on race, color, sex, age and retaliation; neither the charge nor her EEOC intake questionnaire asserts a claim of discrimination based on her religion. Simpson's religion discrimination claims, are unexhausted.
Statute of Limitations
In a state such as New York, which maintains an administrative agency to receive and adjudicate claims of unlawful discrimination, a person alleging employment discrimination under Title VII or ADEA is obligated to file a charge of discrimination with the EEOC within 300 days after the alleged discriminatory act took place. See Pikulin v. The City Univ. of New York, 176 F.3d 598, 599 (2d Cir. 1999) (Title VII); Miller, 755 F.2d at 23 (ADEA). In like manner, a claim of retaliation must also be filed with the EEOC no later than 300 days after an alleged retaliatory act occurs. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14, 122 S. Ct. 2061, 2072-73 (2002).
The defendants contend the plaintiff filed a charge of discrimination on September 25, 2007, and, therefore, any claims arising before November 29, 2006, or 300 days prior to the filing of the charge, are time-barred. Simpson maintains that her "claims were originally filed with the EEOC on June 11, 2007," and that the "conduct of defendants is on-going, continuous and has created a hostile work environment for plaintiff." In support of this assertion, the plaintiff contends: (1) the EEO officer led the plaintiff to believe, "[a]s late as January 2007," her "claims were being resolved by the City Deputy Mayor"; (2) in October 2007, she complained "to the Mayor [by letter] regarding the hostile environment wherein [she] was working"; (3) in September 2007, "defendants changed the time when plaintiff could report to work, i.e., plaintiff is no longer permitted to begin work at 7:30," which she "viewed . . . as further reprisal"; and (4) the August 15, 2005 Agreement "should have tolled the statute [of limitations] not only because it is a contract, but because it violated 29 U.S.C. § 626(f) et seq."
The parties disagree about the date on which Simpson filed a charge of discrimination with the EEOC. Simpson alleges that her June 11, 2007 EEOC intake questionnaire constituted the filing of her charge, while the defendants allege that Simpson filed a charge with the EEOC, on September 25, 2007.
The required content for a charge "is minimal" and "a charge 'is sufficient' when the EEOC receives 'a . . . writing' . . . from the person making the charge that names the employer and generally describes the allegedly discriminatory acts."Holowecki, 440 F.3d at 566 (citing 29 C.F.R. §§ 1626.3, 1626.6, 1626.8). "[A] writing submitted to the EEOC containing the information required by EEOC interpreting regulations is an EEOC 'charge' for purposes of Section 626, only when the writing demonstrates that an individual seeks to activate the administrative investigatory and conciliatory process." Id. at 566-67. The Second Circuit Court of Appeals has found that an "EEOC Intake Questionnaire and accompanying affidavit" evidence an intent to "activate the administrative process" when they possess the following characteristics: (1) a "forceful tone and content [in] the affidavit" submitted; (2) "the 'consent' box on the questionnaire form [is "checked"]," to allow disclosure of one's identity to the alleged discriminating employer; and (3) an unambiguous request that an employer's discriminatory practices come to an end. Id. at 568-69.
Simpson's EEOC intake questionnaire contains the "minimal" information required by EEOC interpreting regulations. See Holowecki, 440 F.3d at 566 (citing 29 C.F.R. §§ 1626.3, 1626.6, 1626.8). In analyzing Simpson's intent to "activate the administrative process," the Court notes that, unlike the circumstance in Holowecki, where an affidavit accompanied the plaintiff's EEOC intake questionnaire, the record here contains only Simpson's questionnaire and the amendment attached to it; nothing in the record before the Court indicates an affidavit in support of Simpson's questionnaire exists. Accordingly, in the case at bar, no assessment of the tone and content of such a document can be made. In addition, a "consent box" does not appear on Simpson's questionnaire, and there is no indication that she would consent to the EEOC's disclosure of her identity to her employer. Moreover, Simpson's questionnaire lacks an unambiguous request that DHPD cease its alleged discriminatory practices. Additionally, the EEOC's letter and intake questionnaire explain that a charge must be filed, the questionnaire generally does not meet the requirements for filing a charge, and a 300-day statute of limitations for filing a charge exists. The instant case is distinguishable fromHolowecki, as no evidence exists of an intent by Simpson to "activate" the EEOC's administrative process by filing her intake questionnaire, and the EEOC provided information to Simpson informing her of the need to file a charge timely. Simpson's intake questionnaire is insufficient to constitute a "charge" and, therefore, the statute of limitation, on her claims, runs from September 25, 2007, the date Simpson filed a charge of discrimination with the EEOC.
"Under the continuing violation exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993); see also Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (noting that the continuing violation exception applies to both Title VII and ADEA cases). However, in this case, the plaintiff's reliance on the "continuing violation theory," is misplaced. Discrete acts, such as a failure to promote or a denial of transfer, alleged to be discriminatory, constitute separate actionable unlawful employment practices. See Nat'l R.R. Passenger Corp., 536 U.S. at 114, 122 S. Ct. at 2073. Consequently, a plaintiff like Simpson, alleging failure to promote, retaliation, and "transfer" to the review division of DHPD's harassment unit, "can only file a charge [of discrimination] to cover discrete acts that 'occurred' within the appropriate time period." Id. at 114, 122 S. Ct. at 2073. Recovery is precluded "'for discrete acts of discrimination or retaliation that occur outside the statutory time period,' even if other acts of discrimination occurred within the statutory time period."Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004) (emphasis omitted) (quoting Nat'l R.R. Passenger Corp., 536 U.S. at 105, 122 S.Ct. at 2061).
Since the plaintiff filed her charge of discrimination on September 25, 2007, any claims arising before November 29, 2006, or 300 days prior to the filing of the charge, are time-barred.See Nat'l R.R. Passenger Corp., 536 U.S. at 113-14, 122 S. Ct. at 2072-73; Pikulin, 176 F.3d at 599. Therefore, the Court finds that the following claims are time-barred: (1) Simpson's failure to promote claim, which includes the plaintiff's April 27, 2005 promotion request, her May 16, 2005 EEO complaint requesting a promotion and raise, and the August 15, 2005 Settlement providing her a promotion and raise; (2) Simpson's retaliation claim, as asserted in her July 6, 2006 EEO complaint and the August 2, 2006 amendment to her July 2006 complaint; (3) the violation of the August 2005 settlement agreement alleged to have occurred in April 2006 (4) any claims arising from DHPD's division of the harassment unit, and Simpson's assignment to the harassment unit's "review division," on September 26, 2006; and (5) the plaintiff's claims that she was informed, in September 2006, not to speak with co-workers, use the law library, or participate in meetings, workshops and seminars.
The plaintiff's assertion, that her claims are not time-barred because: (1) in January 2007, she believed her claims were being resolved; and (2) in October 2007, she wrote a letter to the Mayor regarding her work environment, are meritless. Simpson's belief and letter are not incidents of discrimination by her employer in furtherance of an ongoing discriminatory policy. See Lambert, 10 F.3d at 53 (providing that, when an EEOC charge is timely filed regarding "any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone"). Simpson's argument, that the August 15, 2005 Agreement should have tolled the limitations period, because the Agreement violated 29 U.S.C. § 626(f) et seq., also fails. Simpson neither identifies the terms of the Agreement that violate this statute, nor suggests that the statute was violated after the Agreement was executed. Moreover, Simpson does not allege the violation constituted an act of discrimination perpetrated against her. Furthermore, Simpson does not provide any authority supporting her proposition that a settlement agreement, which violates federal law, tolls the 300-day limitations period. To the extent Simpson is alleging that implementation of the Agreement constitutes an ongoing violation of 29 U.S.C. § 626(f) and would allow her to invoke the "continuing violation" exception to the limitations period, she is wrong. This is so because Simpson does not contend the implementation of the Agreement, which allegedly violates 29 U.S.C. § 626(f), was an "incident of discrimination in furtherance of an ongoing policy of discrimination." Lambert, 10 F.3d at 53.
The Court finds that Simpson's claim, that in September 2007 the "defendants changed the time when plaintiff could report to work, i.e., [she] is no longer permitted to begin work at 7:30," which Simpson "viewed . . . as further reprisal," is not time-barred, as Simpson's charge was filed within 300 days of the alteration to her work schedule.
Prima Facie Case of Discrimination
In order to survive a motion for summary judgment, a Title VII plaintiff must, in the first instance, establish a prima facie case of discrimination by showing: (1) she is a member of a protected class; (2) she is qualified to perform the job in question; (3) she suffered an adverse employment action; and (4) the action occurred under circumstances giving rise to an inference of discrimination. See Dawson v. Bumble Bumble, 398 F.3d 211, 216 (2d Cir. 2005) (citations omitted). If the plaintiff establishes her prima facie case, a presumption of discrimination arises and the burden shifts to the defendant to proffer a legitimate, non-discriminatory reason(s) for the adverse action. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000). If the defendant provides such a reason(s), the presumption of discrimination created by the prima facie case is rebutted, and the burden shifts back to the plaintiff to prove, by a preponderance of the evidence, that the legitimate reason(s) offered by the defendant is a pretext for discrimination. See Dawson, 398 F.3d at 216. This analysis is also applicable to NYSHRL and NYCHRL claims. Id. at 217.
In order for Simpson's claim, that the change in her work schedule was a "further reprisal" against her for challenging discriminatory conduct by her employer, to withstand the defendants' summary judgment motion, the plaintiff must show,inter alia, the changed schedule constituted an "adverse employment decision or action." See Dawson, 398 F.3d at 216. "A plaintiff sustains an adverse employment action if . . . she endures a 'materially adverse change' in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). A "materially adverse change" is one that is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (quotations and citation omitted). Examples of a materially adverse change include: "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id. (quotations and citations omitted).
Simpson alleges she was discriminated against when the defendants required that her workday begin no earlier than 8:00 a.m., despite Simpson's record of beginning her workday at 7:30 a.m. "Typically, . . . shift changes without a loss of pay or other material changes in working conditions do not constitute an adverse employment action." Booker v. Fed. Reserve Bank of New York, Nos. 01 Civ. 2290, 01 Civ. 2291, 2003 WL 1213148, at *11, 2003 U.S. Dist. LEXIS 3955, at *31 (S.D.N.Y. March 17, 2003). In the case at bar, Simpson was informed that her workday must begin one half hour later than the time at which she had become accustomed to beginning her workday. The change in Simpson's workday start time had no impact on her salary or her other material work conditions. Consequently, the Court finds that the change in Simpson's work schedule did not constitute a "'materially adverse change' in the terms and conditions of [her] employment." Galabya, 202 F.3d at 640; see also Booker, 2003 WL 1213148, at *11, 2003 U.S. Dist. LEXIS 3955, at *31.
Supplemental Jurisdiction
The remaining claims asserted by Simpson are based on alleged violations, by the defendants, of NYSHRL and NYCHRL. The court may, in its discretion, exercise supplemental jurisdiction over these claims. See 28 U.S.C. § 1367(a). A court has broad discretion to decide whether to exercise its supplemental jurisdiction over state — and city-law claims. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726-27, 86 S. Ct. 1130, 1139-40 (1966); Seabrook v. Jacobson, 153 F.3d 70, 73 (2d Cir. 1998). A court may decline to exercise supplemental jurisdiction over such claims if the court "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). Since dismissing the federal claims asserted in this action appears warranted, it would be reasonable and appropriate for the court to decline to exercise its supplemental jurisdiction authority with respect to the plaintiff's remaining claims.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the defendants' motion for summary judgment, pursuant to Fed.R.Civ.P. 56, Docket Entry No. 23, be granted, with respect to the plaintiff's Title VII and ADEA claims. I recommend further that the court decline to exercise its supplemental jurisdiction over the plaintiff's state — and city-law claims.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Stein. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).