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Pimentel v. the City of New York

United States District Court, S.D. New York
Dec 11, 2001
00 Civ. 0326 (SAS) (S.D.N.Y. Dec. 11, 2001)


00 Civ. 0326 (SAS)

December 11, 2001

Richard Cardinale, Esq., Cardinale Hueston, Brooklyn, NY, for Plaintiff.

Donald C. Sullivan, Assistant Corporation Counsel of the City of New York, Brooklyn, NY, for Defendant.


Sylvia Pimentel, a Puerto Rican female, alleges that the City of New York ("City") discriminated against her in employment on the basis of her race, national origin, and her disability ("Hepatitis C") in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and the Americans with Disabilities Act, 42 U.s.c. §§ 12102 et seq. ("ADA"). Pimentel also claims the City retaliated against her for filing charges of discrimination.

Plaintiff contends: (1) she was subjected to a hostile work environment while working as a supervisor and was eventually demoted because of her race and national origin; (2) she was discriminated against while working as a caseworker in terms of her job assignments, performance evaluations, and disciplinary action in retaliation for filing a charge with the New York City Commission on Human Rights ("CCHR"); and (3) was wrongfully denied a transfer, wrongfully refused appropriate medical accommodations, subjected to selective disciplinary practices, and not paid at the same level as similarly situated employees, while working as a caseworker, because of her national origin, disability, and in retaliation for filing her CCHR complaint as well as two other complaints with the New York State Division on Human Rights ("SDHR").

Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendant's motion is granted in part and denied in part.


In 1988, the City's Bureau of Child Welfare hired Pimentel and in 1990 she became a permanent Civil Service employee holding the position of caseworker. See Defendant's Local Rule 56.1 Statement of Undisputed Facts ("Def. 56.1") 1. In January 1997, Valerie Powell selected Pimentel for promotion to Supervisor I in the City's Administration for Children Services ("ACS") on a probationary basis and served as her direct supervisor. See id. 3; Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Mem.") at 14-15. Pimentel received numerous memoranda during her probationary period addressing problems with her job performance. Id. at 13.

On August 29, 1997, approximately seven months after her appointment, Pimentel was demoted from Supervisor I to caseworker. See Def. 56.1 7. After her demotion she was reassigned to ACS's Office of Child Support Enforcement ("OCSE") where she reported to a new supervisor, Jean Germain. See 9/27/00 Deposition of Sylvia Pimentel ("Pimentel Dep."), Ex. F to Memorandum of Law in Support of Defendant's Motion for Summary Judgment ("Def. Mem."), at 564:11-16; 5/18/01 Deposition of Jean Germain, Ex. 2 to Pl. Mem., at 16:21-24. On January 13, 1998, Pimentel filed a charge of discrimination with the CCHR alleging that she was demoted on the basis of her race and national origin. See 1/15/98 CCHR Complaint, Ex. B to Def. Mem.

On August 6, 1998, Pimentel was diagnosed with Hepatitis C. See 10/13/99 Letter from Dr. Geders ("Geders Ltr."), Ex. 7 to Pl. Mem. Over the next thirteen months, Pimentel made three separate requests for a medical transfer — on August 13, 1998, March 25, 1999, and September 8, 1999. See Complaint ("Compl.") 5, 8. None of these requests were granted. Id. On August 13, 1999, Pimentel began a six-month treatment regime for her Hepatitis C, but discontinued it prematurely after approximately two months. See Geders Ltr.

After being diagnosed with Hepatitis C, Pimentel filed two additional administrative charges against her employer. On September 1, 1998, she filed a charge of retaliation with the SDHR, alleging that the City retahated against her in job assignment, disciplinary memoranda, and performance evaluations, because she had previously filed a charge of discrimination with the CCHR. See 9/01/98 SDHR Complaint, Ex. C to Def. Mem. On September 22, 1999, she filed a charge with the SDHR, alleging that she was discriminated against on the basis of her disability, Hepatitis C, and on the basis of her race and national origin. See 9/22/99 SDHR Complaint, Ex. D to Def. Mem. In this charge she alleged that the City had wrongfully refused to transfer her, wrongfully refused to accommodate her medical condition, disciplined her for minor infractions, and failed to pay her at the same rate as non-disabled, non-Hispanic co-workers. Id. On January 18, 2000, Pimentel filed the instant Complaint. All three of her administrative complaints were cross-filed with the United States Equal Employment Opportunity Commission ("EEOC") and were incorporated in her Complaint. See Def. Mem. at 1, n. 1.


A motion for summary judgment may be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law. A reasonably disputed, legally essential issue is both genuine and material and must be resolved at trial." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (quotation marks and citations omitted).

In determining whether genuine issues of material fact are in dispute, courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). If the moving party meets its initial burden, the nonmoving party may not rely on conclusory allegations or speculation to create factual disputes. Instead, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (quotation marks and citations omitted) (alteration in original)

In employment discrimination cases, courts must be aware that evidence of discrimination is seldom overt; "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law." Bickerstaff v. Vasser College, 196 F.3d 435 (2d Cir. 1999) (quotation marks omitted) At the same time, courts must "carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture. . . ." Id. "Thus, the question is whether the evidence can reasonably and logically give rise to an inference of discrimination under all of the circumstances." Id.

III. DISCUSSION A. Discriminatory Demotion

Title VII makes it unlawful for an employer to "discharge any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a). In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court established a burden-shifting framework for Title VII claims under which a plaintiff establishes a prima facie case of discrimination by showing that she:

(1) is within a protected group, (2) is qualified for the position, (3) was subject to an adverse employment action, (4) and the adverse action occurred under circumstances giving rise to an inference of discrimination based on membership in this protected class.
See Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). "If a plaintiff establishes a prima facie case, a presumption of discrimination is created and the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action or termination." Id. If defendant meets this burden of production, "the presumption drops out of the analysis," id., and plaintiff must meet her ultimate burden of proving that she was the victim of intentional discrimination. See id.

1. Prima Facie Case

Plaintiff claims that she was demoted from her position as probationary Supervisor I because of her race and national origin in violation of Title VII. See 1/15/98 CCHR Complaint. Defendant only challenges whether plaintiff has satisfied the second and fourth prongs of the prima facie test.

The City concedes that plaintiff is a member of a protected class and that her demotion qualified as an adverse employment action. See Def. Mem. at 5.

a. Qualification Issue

Plaintiff claims that she was qualified for the position because she met the minimum application standards for the Supervisor I position, namely that she possessed a bachelor's degree, was at least eighteen years of age, and achieved the requisite score on the civil service exam. See Pl. Mem. at 7. She buttresses her qualification status by pointing to a prior history of "very good" and "outstanding" performance evaluations while she was a caseworker. Id. Relying on Owens v. New York City Housing Authority, 934 F.2d 405, 409 (2d Cir. 1991) and Powell v. Syracuse University, 580 F.2d 1150, 1155 (2d Cir. 1978), plaintiff contends that she only needs to possess the "basic skills" necessary for performance of the job to satisfy the qualification prong. Pl. Mem. at 6.

While an applicant need not be the "best-qualified candidate for the job," Powell, 580 F.2d at 1155 (holding that "proof of competence sufficient to make out a prima facie case of discrimination was never intended to encompass proof of superiority or flawless performance") (emphasis added), once an applicant has been hired the determination of an employee's qualification encompasses her actual onmdashithemdashijob performance. See id. at 1155 (plaintiff need only show that her performance was of "sufficient quality to merit continued employment");see also Thornley, 104 F.3d at 28-29 (to prove she was qualified for the position from which she was discharged, plaintiff must show that she was satisfactorily performing her job); Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985) (plaintiff must show as part of her prima facie case that she met her employer's legitimate expectations).

As the Second Circuit clarified in Thornley v. Penton Publishing, 104 F.3d 26, 30 (2d Cir. 1996), "Owens did not depart from our holdings that a plaintiff complaining of discriminatory discharge shows `qualification' by demonstrating satisfactory job performance, in accordance with the particular employer's criteria for satisfactory performance." Moreover, "whether job performance was satisfactory depends on the employer's criteria for the performance of the job — not the standards that may seem reasonable to the jury or judge." Id. at 29.

Plaintiff has alleged no facts that indicate she performed her job as a Supervisor I satisfactorily after she was hired. While plaintiff contends that the negative oral and written feedback she received from her supervisors was "false" and merely pretextual, Pl. Mem. at 13, she points to no affirmative indications from supervisors that she met their expectations during her probationary period.

Additionally, plaintiff's own testimony reveals that she was unhappy with her new duties as a Supervisor I and struggled to fulfill them. See, e.g., Pimentel Dep. at 132.

Plaintiff's argument that one of her supervisors gave her good evaluations, see Pl. Mem. at 7, is inapplicable because these positive evaluations were received after she was demoted and transferred to another department. Plaintiff's argument comes perilously close to intentionally misleading the court, since plaintiff's reply memo implied that the positive evaluation came from one of her probationary period supervisors.

An inference of satisfactory performance can arise from a lack of negative feedback. See, e.g., Powell, 580 F.2d at 1155 (failure of supervisor to communicate dissatisfaction with employee's performance allowed for inference that employee was satisfactorily performing her job). Plaintiff cannot rely on such an inference for two reasons. First, plaintiff's appointment was on a probationary basis and she was aware that she needed positive evaluations to secure permanent employee status. See Plaintiff's Declaration ("Pl. Decl.") at 67. Second, plaintiff did, in fact, receive negative oral and written feedback from her supervisors during her probationary period. Because plaintiff has failed to allege any facts to support even an inference that she was performing her Supervisor I duties adequately, she has failed to establish that she was "qualified" for her position.

While plaintiff contends that she did not receive all of the written memos criticizing her job performance during her probationary period, she admits that she did receive some and was clearly aware that her supervisor was unhappy with her job performance. See Pl. Mem. at 13.

The Second Circuit's recent statement that "the qualification prong, as to which the initial burden lies on plaintiff, cannot be transformed into a requirement that plaintiff anticipate and disprove an employer's explanation that inadequate ability or performance justified the job action at issue" is not applicable. Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001). In that case, the court held that this principle applies in the context of a Rule 12(b)(6) motion and further that "there will also be circumstances in which a plaintiff's performance is so manifestly poor as to render her unqualified for continued employment and thereby defeat her prima facie case. See, e.g., McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) (concluding, in the summary judgment context, that no prima facie case had been made out where, after a probationary period, the employer rated plaintiff's work unsatisfactory on a majority of criteria and plaintiff did not contest most of these ratings)." Id. at 697.

b. Discriminatory Inference

As to the fourth prong of the prima facie test, the "inference of discriminatory intent," courts have described several ways such an intent may be demonstrated. Illustrative examples have included: criticizing plaintiff's performance in ethnically degrading terms, invidious comments about others in plaintiff's protected group, the more favorable treatment of employees not in the protected group, and the sequence of events leading to the negative employment action. See Chambers v. TRM Copy Ctr. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

Here, plaintiff claims that the inference of discriminatory intent arises from twelve separate incidents. Although defendant contests the occurrence of many of these incidents, see, e.g., Reply Memorandum of Law in Further Support of Defendant's Motion for Summary Judgment ("Reply Mem.") at 4, because this is a summary judgment motion this Court draws all reasonable inferences in plaintiff's favor.

Plaintiff alleges the following acts attributable to defendant:

1. Plaintiff was denied the opportunity to earn overtime, in contrast to plaintiff's black co-workers. 2. Plaintiff was confronted by a black supervisor who stated "don't make so much noise you drunken Puerto Rican bitch." The supervisor then tried to strike plaintiff in the face with a telephone, and stated, "I'll crack you over the face with this you drunken Puerto Rican bitch." Plaintiff filed an internal complaint about this incident, but found out months later that ACS never processed it. 3. A black co-worker called plaintiff a "bitch" and physically attacked plaintiff from behind. When plaintiff complained to a supervisor, he refused to reprimand Smith claiming he did not wish to get the "natives restless." 4. One of plaintiff's black supervisors, Valerie Powell, repeatedly yelled at plaintiff in front of co-workers, reduced plaintiff's responsibilities, and cancelled meetings that plaintiff had scheduled with her subordinates. 5. Powell physically pushed plaintiff. 6. Powell refused plaintiff's requests to be transferred so that she could continue to abuse plaintiff. 7. ACS refused to accept an internal discrimination or "EEO" complaint that plaintiff wished to file against Powell. 8. ACS employees informed plaintiff that Powell had a practice of abusing Hispanic subordinates and then discarding them through termination or demotion. 9. Powell issued harassing, unjustified memoranda criticizing plaintiff's work performance and attendance, and eventually demoted plaintiff from the position of Supervisor to Caseworker. Two of plaintiff's non-Hispanic co-workers, Ms. Altman and Ms. Cheryl Laramore, were absent from work for months, but were never disciplined or issued harassing memoranda about their attendance. 10. Prior to being demoted, plaintiff overheard Powell state to another employee: "Why should we pay her [plaintiff] supervisory pay when we can get one of our own to work for us?" 11. A supervisor state in plaintiff's presence "don't put her [plaintiff] in my unit because none of the Afro-Americans like her and I want to keep them pacified." 12. Plaintiff, in contrast to her black co-workers, was denied a medical related transfer out of the Manhattan and into the Brooklyn office of ACS. The following co-workers of plaintiff, the majority of whom are black, and none of whom are Hispanic, had their requests for transfers granted: Mr. Chowdry, Mr. Green, Mr. Haider, Mr. Milligan, Mr. Ogbu, Ms. Ortiz, and Mr. Levi Samuels.

i. Time Bar

This Court previously held that the EEOC's issuance of a right-to-sue letter based on the allegations in plaintiff's January 13, 1998 CCHR complaint allowed a trigger date for time bar purposes of March 18, 1997, 300 days prior to the filing of Pl. Mem. at 8-11. that complaint. See Pimentel v. City of New York, 2000 U.S. Dist. LEXIS 15395, at *4 (S.D.N.Y. Oct. 23, 2000). Accordingly, I will not consider incidents that occurred prior to that date. See 42 U.S.C. § 2000e-5 (e); Rose v. Port Auth. of N.Y. N.J., 13 F. Supp.2d 516, 519-20 (S.D.N Y 1998) ("The charge must be filed . . . within 300 days if the plaintiff has initiated proceedings with a state or local agency with authority to institute an action regarding the discriminatory practice.").

Due to a miscalculation of the 300-day period the Court mistakenly stated in its prior opinion that the trigger date was October 18, 1997.

Of the twelve alleged incidents, plaintiff's own testimony demonstrates that numbers 1, 2, 3, and 11 occurred in 1996 in a different department. These incidents are therefore time-barred and cannot be considered.

The relevant portions of plaintiff's testimony are found in Pimentel Dep. at 34:13-21, 45:23-46:10, 53:25-54:7 (noting that the overtime "problem" was at PRRS — not HSU), 53:9-53:24 (plaintiff testified that she received overtime at Housing Subsidy), 57:25-58:24 (referring to black supervisor), 111:6-111:23, 114:23-115:16 (incident with co-worker which allegedly led to supervisor's comment about plaintiff's inability to get along with African-Americans occurred in 1996).

ii. Criticizing and Degrading Comments and Behavior

Incidents 4, 5, 6, 9, 10 all involve critical and degrading comments and behavior directed towards plaintiff. To raise an inference of discriminatory intent the comments and behavior must be linked in some way to plaintiff's protected status. This linkage is typically found by the use of invidious or ethnically degrading comments. See, e.g., Chambers, 43 F.3d at 38 ("Further, there is not direct proof of discriminatory animus, as Chambers proffered no evidence of any invidious remarks by Perteet, by other TRM officials, or by any of his co-workers.").Plaintiff offers no support, other than her own subjective belief, that incidents 4, 5, 6, and 9 were motivated by discriminatory bias. See Curtis v. Airborne Freight Corp., 87 F. Supp.2d 234, 249 n. 20 (S.D.N Y 2000) ("Plaintiffs improperly attempt to create an issue of fact with respect to Zaranski's racial animus by setting forth conclusory and speculative allegations.")

Incident 10, however, does impute an ostensibly racial remark to plaintiff's supervisor, Valerie Powell, specifically that plaintiff was not "one of our own." Pl. Mem. at 10. While there is evidence that this alleged statement was made in the presence of a racially-diverse group, and therefore referred to plaintiff's job category and not race, a motion for summary judgment requires all inferences to be drawn in favor of plaintiff. Therefore, this alleged comment provides a modicum of support for an inference of discriminatory intent.

iii. Disparate Treatment

Plaintiff also alleges in incidents 9 and 12 that other workers were treated more favorably than she and that such disparate treatment raises the inference of discriminatory intent. Id. In incident 9 plaintiff alleges that other non-Hispanic co-workers had a higher rate of absenteeism than she did but were not similarly reprimanded. While plaintiff offers nonparty testimony that such workers were absent, she provides no facts showing how these workers were dealt with by their supervisors or any evidence that they were not reprimanded. See Pl. Decl. 2.

Plaintiff alleges in incident 12 that seven other workers "had their requests for transfers granted." Pl. Mem. at 10-11. Plaintiff's own testimony, however, contradicts this statement. Two of the employees did not request transfers but were allegedly transferred involuntarily in retaliation for talking with plaintiff. See Pimentel Dep. at 672:3 to 674:5. Another employee resigned her position to accept a job in the Department of Corrections. See id. at 671:10-20. The other employees were transferred within OCSE for unknown reasons. See id. at 674:16 to 677:25. Because none of these employees requested and received a transfer out of OCSE, their situations are not similar, and therefore not applicable to plaintiff's treatment. As a result, incidents 9 and 12 do not provide any factual basis to support plaintiff's contention of disparate treatment.

Plaintiff also admits that she knew of three employees who were denied transfers out of OCSE, none of whom are Hispanic. See Pimentel Dep. at 684:6 to 684:16; 680:24 to 681:2 (Mr. Haider is Pakistani), 685:5 to 685:25 (Ms. Freidlich is White), 206:5 (Mr. Hawana is Egyptian).

iv. Other Bases

Plaintiff alleges two additional incidents, numbers 7 and 8, that do not fit neatly in any of the previously mentioned categories. Plaintiff's allegation that she heard from another co-worker that Ms. Powell, plaintiff's supervisor, had a pattern of hiring Spanish supervisors so that she could then fire them deserves little credit for three reasons: (1) plaintiff has not alleged that there were any other Spanish supervisors under the supervision of Ms. Powell, (2) if such supervisors existed she did not name them, and (3) she alleged no facts showing that any such person was in any way mistreated.

Plaintiff also claims that she tried to file an internal discrimination complaint internally with the Administration for Children Services ("ACS") and that the EEO officer's refusal to accept it raised an inference of discriminatory intent. While plaintiff offers only a vague description as to the circumstances of her alleged attempt to file such a claim, defendant documented her inquiry, responded in writing to inform her that her "vague, conflicting or confusing" allegations did not articulate "an EEO issue," and provided her a list of external agencies to pursue any related grievances. See 7/14/97 Letter to Sylvia Pimentel, Ex. AA to Reply Mem. Because defendant's response clearly identifies the deficiencies of the plaintiff's allegations, leaves open the possibility for its amendment, and offers alternate avenues of relief, the mere fact that the claim was not "accepted" is not sufficient to raise an inference of discriminatory intent.

Plaintiff's testimony consisted of two statements: "I tried to file an EEO complaint in July and Maryanne Sally, the director of EEO, denied my complaint. She said, "no, I am not going to take it, because I don't understand what you're talking about.'" Pimentel Dep. at 66:12-16.

v. Same Actor Inference

Despite plaintiff's subjective belief that her supervisor Ms. Powell harbored racial animus towards her, see Pimentel Dep. at 68, it is undisputed that Ms. Powell hired plaintiff for the supervisory position. See 5/18/01 Deposition of Valerie Powell, Ex. 4 to Pl. Mem., at 11-13. When the same person both hires and then subsequently fires a person within the protected class, "it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire. Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997). The "same actor inference" applies and counters an inference of discriminatory intent here because Powell selected plaintiff for the position and later wrote memoranda critical of plaintiff's job performance, conduct and attendance, directly leading to her being demoted,.

Although plaintiff disputes the meaning of the term "selection" contending that others in the applicant pool were not truly interested in accepting the position, it is uncontested that Powell officially offered her the job and thus "hired" her. See Pl. Mem. at 14-15.

vi. Probationary Status

Plaintiff was appointed to her position as Supervisor I on a probationary basis and removed approximately seven months later. There is a strong inference that discrimination was not a motivating factor where the adverse employment action occurs within a relatively short time after hiring. See Grady, 130 F.3d at 561 (eight days between hiring and firing provides strong inference); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 847 (1st Cir. 1993) (where same actor inference applies, two years between hiring and firing is a sufficiently short span of time to negate inference of discriminatory intent). Plaintiff's employment on a probationary basis also strongly weighs against any inference of discriminatory intent because she knew that her appointment was on a provisional basis and that she was subject to review before permanently securing the position. See McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Pimentel Dep. at 537:14 to 537:18.

While plaintiff's evidence on this fourth prong is slight — the ambiguous racially identifying comment — it satisfies the de minimus requirement for each prong of the prima facie test. Even if the Court assumes, arguendo, that plaintiff had made out a prima facie case, defendant would still be entitled to summary judgment on this cause of action, for the reasons set forth below.

2. Defendant's Burden of Production

Defendant has met its burden of production by proffering a nondiscriminatory reason for plaintiff's demotion. Defendant has offered strong support for its contention that plaintiff was demoted because she could not satisfactorily perform her job duties. Plaintiff's direct supervisor sent her numerous memos throughout her probationary period pointing out deficiencies in her performance, including chronic absenteeism, leaving work without permission, and recurring mistakes in performing routine job tasks. Plaintiff's unsatisfactory performance was also addressed by other ACS supervisors. Additionally, defendant proffered internal memoranda documenting plaintiff's continuing problems performing her job. This overwhelming evidence is more than sufficient to counter plaintiff's prima facie case.

See 8/7/97 Memo to Sylvia Pimentel (noting absence without permission), Ex. H to Def. Mem.; 8/8/97 Memo to Sylvia Pimentel (noting refusal to take assignments), Ex. I to Def. Mem.; 4/4/97 Memo to Sylvia Pimentel (noting failure to follow procedures), Ex. J to Def. Mem.; 4/7/97 Memo to Sylvia Pimentel (noting procedural mistakes), Ex. K to Def. Mem.; 4/24/97 Memo to Sylvia Pimentel (procedure reminder), Ex.L to Def. Mem.; 4/30/97 Memo to Sylvia Pimentel (noting chronic absenteeism during probationary period), Ex. M to Def. Mem.; 5/3/97 Memo to Sylvia Pimentel (noting procedural mistakes), Ex. N to Def. Mem.; 7/15/97 Memo to Sylvia Pimentel (noting various work- related problems), Ex. P to Def. Mem.; 8/1/97 Memo to Sylvia Pimentel (noting sick leave procedural problems), Ex. R to Def. Mem.

See 8/8/97 Memos by Silvio Dobry, Manager, Ex. H I to Def. Mem.; 6/27/97 Memo by Jo-Ann Iseral, Executive Assistant, Ex. S to Def. Mem.

See 8/14/97 Memo to Miles Driscoll, Ex. T to Def. Mem.; 7/11/97 Memo from Valerie Powell, Ex. O to Def. Mem.; 4/24/97 Memo to Sylvia Pimentel (supervisor's notations on file copy), Ex. L to Def. Mem.

3. Plaintiff's Burden of Proving Discrimination

Because defendant met its burden, plaintiff can no longer benefit from the presumption of discrimination and must now demonstrate that the evidence, taken as a whole, reasonably supports a finding of unlawful discrimination. Here, no reasonable finder of fact could conclude that defendant engaged in unlawful discrimination against plaintiff based on her race or national origin when it demoted her. While plaintiff was able to point to a single incident that might raise an inference of discriminatory intent, see supra Part III.A.1.b, this incident is ambiguous at best.

Valerie Powell's alleged statement that plaintiff was not "one of us" presents a very weak case because the alleged comment was made to an unknown co-worker of unknown race or ethnicity, and there is ample evidence that the workforce was highly diverse in terms of race and national origin.

Weighed against this ambiguous incident are the uncontroverted facts that plaintiff was hired by the same person who allegedly discriminated against her, the short time period between her being hired and fired (approximately seven months), the probationary status of her appointment, and the documentation from several supervisors of her inability to satisfactorily perform her job. Under these circumstances, no reasonable factfinder could conclude that defendant acted with unlawful discriminatory intent when it demoted plaintiff. Therefore, the defendant's motion for summary judgment on the claim of discriminatory demotion is granted.

B. Hostile Work Environment 1. General Legal Standard

"Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). To maintain a hostile work environment claim under Title VII, a plaintiff must demonstrate "that [her] workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [her] work environment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quotation marks omitted). A hostile work environment claim "will succeed only where the conduct at issue is so severe or pervasive as to create an objectively hostile or abusive work environment, and where the victim subjectively perceive[s] the environment to be abusive."Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426 (2d Cir. 1999) (quotation marks omitted) (alteration in original).

A Title VII plaintiff must also show that "a specific basis exists for imputing the conduct that created the hostile environment to the employer." Schwapp, 118 F.3d at 110. However, the Supreme Court recently held that an employer is presumed absolutely liable where the hostile environment was created by the victim's supervisor, although the employer may assert an affirmative defense to rebut the presumption of liability. See Burlington Indus. v. Ellerth, 524 U.S. 742 (1998). In the instant case, the alleged discrimination was perpetrated in large part by plaintiff's direct supervisor and defendant has not asserted an affirmative defense to rebut liability. Accordingly, defendant will be presumed liable for any actionable discriminatory conduct by Powell or any other supervisor.

Defendant does not directly dispute that plaintiff subjectively perceived her environment as hostile. Accordingly, this discussion focuses on the objective prong of plaintiff's hostile workplace claim.

In order to determine whether a workplace is permeated with "severe or pervasive" discrimination, courts must consider the totality of the circumstances and evaluate ""the quantity, frequency, and severity"' of the alleged incidents of discrimination. Richardson, 180 F.3d at 437 (quoting Schwapp, 118 F.3d at 111). "For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments." Schwapp, 118 F.3d at 110 (quotation marks and citation omitted) (alteration in original); see also Richardson, 180 F.3d at 437 ("Isolated incidents or episodic conduct will not support a hostile work environment claim.")

As a general rule, hostile work environment claims in the Second Circuit have survived summary judgment if the record reflects a continuous and repeated pattern of explicit racial slurs or a few particularly severe incidents of discrimination. For example, in Schwapp, the Court of Appeals reversed the district court's grant of summary judgment where plaintiff, the first African-American police officer employed by the town of Avon, alleged that he was subjected to ten racially hostile incidents during a ten-month period, including his fellow officers' repeated use of the term "nigger" in his presence and the distribution of a racially offensive joke involving the term "nigger". Schwapp, 118 F.3d at 108. When Schwapp complained about these incidents to his supervisor, he was told that he "had to understand the history of an all white male department and that at one time all the crimes in Avon were committed by blacks and that guys started to stereotype people." Id.

Alternatively, plaintiff in Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), alleged a single instance of sexual harassment, namely that she was sexually assaulted by two of her supervisors. The Court of Appeals reversed the district court's grant of summary judgment holding that "even a single incident of sexual assault sufficiently alters the conditions of the victim's employment and creates an abusive work environment for purposes of Title VII liability." Id. at 1305.

The line between "sporadic racial slurs" and a "steady barrage of opprobrious racial comments" is particularly well-drawn in Richardson. That case involved an African-American plaintiff who alleged that she was subjected to a racially hostile work environment while employed by the New York State Department of Correctional Service at two different facilities over a period of six years. See Richardson, 180 F.3d at 433. During plaintiff's first assignment at the Auburn Correctional Facility ("ACF"), she was allegedly subjected to the following incidents of explicit racial harassment:

One of [plaintiff's] supervisors referred to Blacks as "apes or baboons" and stated that African-Americans are "so dark you cannot see them anyway," one co-worker referred to her as a "light-skinned nigger," another called her "nigger," yet another went out of his way on one occasion to use the word nigger in her presence, others circulated a joke that disparaged Blacks and referred to them as "niggers," while still others used the terms spooks" and "Buckwheats" to refer to African-Americans.
Id. at 439. In light of both the quantity and frequency of alleged racial slurs and the repeated use of the " "unambiguously racial epithet . . . nigger'", the Second Circuit reversed the district court's grant of summary judgment with respect to Richardson's claim of hostile environment discrimination at ACF. Id. at 439-40 (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)). The Second Circuit explained that although "[a] factfinder may well conclude that the ACF environment was not so objectionable as to alter negatively the terms and conditions of a reasonable person's employment", the court could not state, as a matter of law, "that the record evidence compels only that result." Richardson, 180 F.3d at 440.

In the same case, however, the Second Circuit upheld the lower court's grant of summary judgment with respect to the allegations of hostile environment discrimination at the second facility where she was assigned, Cayuga Correctional Facility ("CCF"). Although plaintiff alleged fifteen incidents of harassment at CCF, only three of the alleged incidents involved racial slurs. See id. Plaintiff's remaining twelve allegations of harassment at CCF included repeated comments by co-workers and supervisors to the effect that plaintiff was "stupid", "crazy", and "ignorant" and would "do anything for money." See id. at 435. Plaintiff also alleged that her supervisors and co-workers left horse manure in plaintiff's parking space; scratched plaintiff's car; struck plaintiff in the head with a rubber-band; locked plaintiff's filing cabinets and failed to pass along plaintiff's phone messages. See id. Despite the large number of alleged incidents of harassment, the Court of Appeals found that because the majority of the incidents were devoid of "racial overtones," Richardson's allegations were insufficient to maintain a hostile work environment claim with respect to CCF.

The Richardson court stated:

In contrast to our conclusion about ACF, we agree with the district court's conclusion that Richardson's allegations were insufficient as a matter of law to establish that an objectively hostile working environment existed at CCF. of the fifteen incidents about which Richardson complains, only three have any racial overtones whatsoever, and these — that one made a disparaging comment about Native Americans, that another once said that all of the Black inmates looked alike, and that a third once made a remark that Jewish people "like to hold on to their money" — are isolated, mild, and cannot, under any objective standard, suffice to create a hostile working environment. Indeed, only one involves Richardson's protected racial category. The balance may reflect that Richardson was not liked by her CCF co-workers and may be relevant to her retaliation claim, which is discussed below. But to sustain a Title VII hostile environment claim Richardson must show more — she must produce evidence that she was discriminated against because of her race, and this she has not done.
Id. at 440.

2. Plaintiff's Allegations of Hostile Environment

Applying both the legal standard set forth above and the facts ofRichardson to the instant case, it is apparent that plaintiff cannot maintain her claim of hostile work environment. The conduct that plaintiff alleges created a hostile work environment is substantially the same as that discussed earlier under the fourth prong of her prima facie case for discriminatory demotion. See Pl. Mem. at 22 and supra Part III.A.1.b. These incidents cannot sustain a claim of hostile work environment.

The only explicit references to plaintiff's race or national origin, as well as the egregious incidents of physical assault, are time-barred.See supra Part III.A.1.b.i. The allegation that plaintiff's supervisor Valerie Powell had a "practice of abusing Hispanic subordinates" lacks sufficient factual support to be considered for the reasons previously stated. See supra Part III.A.1.b.iv. The disparate treatment claims also lack the necessary factual basis under hostile environment analysis. See supra Part III.A.1.b.iii.

The only incidents that remain are Powell's comment that plaintiff was "not one of us" and her other various denigrating and abusive comments and behavior. Except for the first comment, these incidents lack any racial overtones. Considering the ambiguity of the circumstances under which this comment was allegedly made, it provides no evidence of racial animosity. While these other incidents may show, as inRichardson, that plaintiff was not liked by her supervisor, they cannot prove a claim of hostile work environment. Because a plaintiff "must produce evidence that she was discriminated against because of her race [or national origin] and this she has not done," Richardson, 180 F.3d at 440, the defendant's motion for summary judgment on the hostile work environment claim is granted.

See Pl. Mem. at 8-11.

C. ADA Violation

The ADA prohibits covered employers from discriminating:

against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112 (a). "Discrimination" includes, among other things, "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual who is an applicant or employee . . . ." 42 U.S.C. § 12112 (b)(5)(A). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holdsor desires." 42 U.S.C. § 12111 (8) (emphasis added). A "disability" is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." 42 U.S.C. § 12102 (2)

To establish a prima facie case of discrimination under the ADA for wrongful refusal to transfer, an employee must show:

(1) that [she] is an individual who has a disability within the meaning of the statute, (2) that an employer covered by the statute had notice of [her] disability, (3) that with reasonable accommodation, [she] could perform the essential functions of the position sought, and (4) that the employer has refused to make such accommodations.
Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997). The failure to make reasonable accommodation, when the employee has satisfied the first three elements of her claim, is a violation of the ADA.Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999)

1. ADA Disability

In determining whether an individual has an ADA qualifying disability, courts in this Circuit follow the three-step approach taken by the Supreme Court in Bragdon v. Abbott, 524 U.S. 624 (1998). See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998). First, plaintiff must show that she suffers from a physical or mental impairment. See id. (citing Bragdon, 524 U.S. at 631). Second, plaintiff must identify the activity claimed to be impaired and establish that it constitutes a "major life activity." See id. Third, plaintiff must show that her impairment "substantially limits" the major life activity previously identified. See id. If a plaintiff fails to satisfy any of these three prongs, her discrimination claim must be dismissed. See id. at 641.

a. Impairment

Determining whether a person has a disability under the ADA is an individualized inquiry impacted by a wide variety of factors. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999). The Equal Employment Opportunity Commission ("EEOC") has promulgated regulations and issued interpretive guidelines implementing the ADA. The EEOC defines "impairment" broadly to include any "physiological disorder, or condition" that affects, inter alia, the neurological, musculoskeletal, and cardiovascular systems. 29 C.F.R. § 1630.2 (h)(1)

The EEOC's interpretation of the ADA is accorded "'great deference'" as it is the agency ""charged with administering the statute.'" Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 150 n. 3 (2d Cir. 1998) (quoting Francis v. City of Meriden, 129 F.3d 281, 283 n. 1 (2d Cir. 1997)).

Plaintiff's stated impairment is Hepatitis C, which qualifies as a physical impairment under the ADA.

b. Major Life Activity

In deciding whether a particular activity is a "major life activity," the focus is on "whether that activity is a significant one within the contemplation of the ADA. Colwell, 158 F.3d at 642. In general, "major life activities" include functions such as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2 (i). Here, plaintiff claims that her Hepatitis C substantially limits the major life activity of working. See Pl. Mem. at 26. The next step is to determine whether plaintiff has offered sufficient proof that her Hepatitis C substantially limited this major life activity.

c. Substantial Limitation

The EEOC has defined "substantially limits" to mean:

(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity.
29 C.F.R. § 1630.2 (j)(1). EEOC regulations also list the following considerations as relevant: "(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2 (j)(2).

Plaintiff claims that the treatment for her Hepatitis C, rather than the disease itself, qualifies her as disabled under the ADA. See Pl. Mem. at 26. According to plaintiff, her interferon treatment substantially limited her ability to work because it caused her to experience "`extreme' depression, "severe crying spells,' anxiety, insomnia, and fatigue." Id. (quoting Geders Ltr.).

It is not necessary to reach the issue of whether Hepatitis C itself substantially limits plaintiff's major life activity, an issue about which courts disagree. Compare Qualls v. Lack's Stores, Inc., No. 98 Civ. 149, 1999 WL 731758, at *3 (N.D. Tex. Mar. 31, 1999) (Hepatitis C not a disability per se) with Quick v. Tripp, Scott, Conklin Smith. P.A., 43 F. Supp.2d 1357, 1368 (S.D. Fla. 1999) (because Hepatitis C affects reproduction, it can be a disability in the employment context).

Plaintiff began receiving interferon treatments on August 13, 1999, but discontinued the six-month treatment regime after approximately two months. See Geders Ltr.; see also Pimentel Dep. at 426:13-17 ("Q: Until when did you take the medication? A: I finished with the month of October with the interferon.").

Plaintiff's first request for transfer predated this treatment by one year, and her second request by five months. See Compl. 5, 8. Plaintiff submitted her third transfer request on September 8, 1999, less than one month after beginning her treatment. See id. Because the first two transfer requests were based solely on her Hepatitis C condition, rather than its treatment, only the third request for transfer is considered in this analysis.

Treatment for Hepatitis C affects patients differently, with effects ranging from "flu like symptoms" to "extreme fatigue, anxiety, irritability and depression." Pl. Mem. at 17. According to plaintiff, the side effects she experienced included "`extreme' depression, "severe crying spells,' anxiety, insomnia, and fatigue." Id. (quoting Geders Ltr.). Without deciding whether the treatment of Hepatitis C can substantially limit a major life activity, I conclude that no reasonable jury could find that the effects of plaintiff's treatment substantially limited her ability to work.

First, the work-related effects of Pimentel's interferon treatment, which lasted for two months, were not "substantial." The examples offered by Pimentel — not sleeping well at night, going to the bathroom more frequently, taking more time to sign in at work in the morning, and being fatigued from walking around the office during the day — do not support the proposition that her impairments "would be significantly limiting "to the average person in the general population.'" Colwell, 158 F.3d at 644 (quoting 29 C.F.R. § 1630.2 (j)(1)); see also Pimentel Dep. at 482:21-24; 496:22- 24; 502: 2-6; 504:7-9. Moreover, Plaintiff has failed to offer any evidence as to how these impairments limit, much less substantially limit, her ability to work in comparison to the average person. As the court explained in Colwell, "[w]ithout specific evidence . . . the jury could not perform the careful analysis that is necessary to determine that [plaintiff] was substantially limited in his ability to work." 158 F.3d at 645.

Although Plaintiff never specifically identified which of the aforementioned symptoms were attributable to her interferon treatment, as opposed to her Hepatitis C condition in general, I will assume that all of her symptoms relate to her treatment.

See also Colwell, 158 F.3d at 644. In affirming the district court's summary judgment in favor of the defendant, the court in Colwell stated that "[d]ifficulty sleeping is extremely widespread. Colwell made no showing that his affliction is any worse than is suffered by a large portion of the nation's adult population. He failed to establish that the degree of limitation he suffers is substantial." 158 F.3d at 644. Likewise, in Ryan v. Grae Rybicki, P.C., 135 F.3d 867 (2d Cir. 1998), the court affirmed a summary judgement and held that the plaintiff was not disabled under the ADA because she did not show that her colitis substantially limited a major life activity even though it caused her to suffer "erratic, bloody and painful diarrhea," "several stomach pain," and "heavy rectal bleeding." Id. at 868-69. Though the condition was life-long, the court held that the plaintiff had "failed to raise a triable issue of fact whether her colitis will have significant residual effects" and therefore it did not qualify as a substantial limitation on a major life activity. Id. at 871.

Second, the difficulty that Pimentel had in accomplishing her various job duties were due to the stress of her workplace and her depression, both of which predated and existed independently of her interferon treatments. Workplace induced stress and depression are not per se disabilities under the ADA. See Holihan v. Lucky Stores, 87 F.3d 362, 364 (9th Cir. 1996) (finding that a plaintiff who "experienc[ed] stress related problems [anxiety and depression] precipitated by work" at one particular job was not substantially limited in the major life activity of working); Williams v. New York State Dept. of Labor, No. 98 Civ. 3816, 2000 WL 33175735, at *17 (S.D.N.Y. May 25, 2000) (stress induced by co-workers not sufficient to meet legal criteria of disability); Mescall v. Marra, 49 F. Supp.2d 365, 373 S.D.N.Y. 1999) ("By her own admission, [plaintiff's] mental impairment [i.e. stress, depression and anxiety] was caused or exacerbated by her interaction with [her supervisor], resulting in her doctor's recommendation that she did not return to work at [that location] . . . . [S]uch a temporary mental condition would not qualify as a disability under the ADA."). Therefore, to the extent her stress and depression independently contributed to plaintiff's work limitations, they cannot be considered.

See Geders Ltr. (stating that patient complained of "insomnia, loss of appetite, and felt "depressed' . . . symptoms [which] began prior to the use of [interferon].") (alteration added); Pimentel Dep. at 483:12-15 ("I can't start [treatment] now because of the depression.") (alteration added); Pl. Mem. at 27 ("Manhattan is the "busiest' ACS office [whereas the Brooklyn office is] less stressful, slower paced . . . .") (alteration added); Pimentel Dep. at 476:2 to 477:13 (describing other jobs that plaintiff preferred because they are less stressful than her current job); 9/8/99 Transfer Request By Sylvia Pimentel (stating that she "need[ed] to be accommodated to a less stressful, safer office before [she] drop[ped] dead from [management's] abuse.") (alteration added), Ex. W to Def. Mem.; 11/1/99 Letter from Dr. Geders, Ex. W to Def. Mem. (stating that plaintiff was experiencing stress, insomnia, and depression prior to beginning interferon treatment and needed to be transferred to a "less stressful" work environment); see also Pimentel Dep. at 505:11-24 ("Q: [I]s your medical condition of having Hepatitis C or depression limiting your ability to do that job task? A: Well, physically it doesn't.").

Third, the inability to perform a single specific job does not qualify as a "substantial limitation." See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 723 (2d Cir. 1994) ("[A] person found unsuitable for a particular position has not thereby demonstrated an impairment substantially limiting such person's major life activity of working.");see also 29 C.F.R. § 1630.2 (j)(3)(i) ("The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working."). As plaintiff stated in her deposition, she could have worked for a variety of other associated city agencies even though many had the same job duties and responsibilities as her ACS position. Plaintiff's stated work limitations only applied to the job she was in at ACS and therefore do not qualify as substantial limitations.

Compare Pimentel Dep. at 482:13-16 ("It affects me emotionally, [so] that I can't help these people on the phone.") and at 479:21-25 (stating as acceptable a job where plaintiff "won't be 9:00 to 5:00 in an office.") with 479:6-17 ("I would have liked working with the EEOC department handling the complaints . . . because I would be dedicated to the people."). Similarly, compare Pimentel Dep. at 506:19-21 (plaintiff states that she is "worn out before I even get there [to work]") with 479:18-19 (plaintiff could drive the mayor's limousine) and 506:21-23 ("[H]ad it been a job that I really liked, I wouldn't mind putting in six days, 18 hours a day.").

For further evidence that plaintiff's work limitations applied solely to the job she was in, see 9/8/99 Third Request for Medical Transfer by Sylvia Pimentel, Ex. W to Def. Mem. ("I need to be accommodated to a less stressful, safer office before I drop dead from [Management's] abuse.") (alteration added).

Because plaintiff has failed to produce any evidence that her Hepatitis treatment qualifies as an ADA-covered disability, her claim fails as a matter of law. Even assuming that plaintiff had proven that she was disabled while receiving her interferon treatments, her ADA claim would still fail as her requested accommodation was not reasonable for the reasons stated below.

A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In this case the evidence is so one-sided that the defendant must prevail as a matter of law. Id. at 252.

Because defendant did not address the second factor of the prima facie test, that it had notice of plaintiff's disability, it has waived any objection that it was not properly notified.

2. Reasonable Accommodation a. General Principles

An employer is required to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless such [employer] can demonstrate that the accommodation would impose undue hardship on the operation of the business." 42 U.S.C. § 12112 (b)(5)(A). Rather than providing a specific definition of a "reasonable accommodation," the ADA only offers various examples, including "reassignment to a vacant position." See 42 U.S.C. § 12111 (9)(B). "The question of whether a proposed accommodation is reasonable is "fact- specific' and must be evaluated on a "case-by-case basis.'" Stone, 118 F.3d at 101; accord Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2d Cir. 1999).

"It is well established that under the ADA, the employer's duty reasonably to accommodate a disabled employee includes reassignment of the employee to a vacant position for which she is qualified." Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 677 (7th Cir. 1998) (citing 42 U.S.C. § 12111 (9)(B)). See also Norville, 196 F.3d at 99 ("[W]here a comparable position is vacant and the disabled employee is qualified for the position, an employer's refusal to reassign the employee to that position — absent some other offer of reasonable accommodation constitutes a violation of the ADA."). Furthermore, "[t]he option of reassignment is particularly important when the employee is unable to perform the essential functions of his or her job . . . ."Dalton, 141 F.3d at 677 (citing 29 C.F.R. § 1630.2 (o)). See also Norville, 196 F.3d at 98 ("An individual is "otherwise qualified' under the statute if she can, "with or without reasonable accommodation, . . . perform the essential functions of the employment position that such individual holds or desires.") (citing 42 U.S.C. § 12111 (8)).

b. Employee Preferences

While the ADA places a duty on employers to ascertain whether there are some jobs that the employee might be qualified for, see Dalton, 141 F.3d at 677, this rule has limits. First and foremost, an "employer is not obligated to provide an employee the accommodation [she] requests or prefers, the employer need only provide some reasonable accommodation."Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996) "Nothing in the ADA requires an employer to abandon its legitimate, nondiscriminatory company policies defining job qualifications, prerequisites, and entitlements to . . . transfers." Dalton, 141 F.3d at 678. In addition, employers are not required to create new jobs or reassign disabled employees if no positions are vacant. See Norville, 196 F.3d at 99. Nor are employers required to retrain and assign disabled employees to entirely different positions. See Mitchell, 190 F.3d at 9;Parisi v. The Coca-Cola Bottling Co. of New York, 995 F. Supp. 298, 303 (S.D.N.Y. 1998) (transfer required only when an equivalent similar position exists), aff'd, No. 98-7499, 1999 WL 66164, at *1 (2d Cir. 1999)

As previously mentioned, see supra Part III.C.1.c., plaintiff has failed to demonstrate that her request to be transferred would accommodate her alleged disability. Thus, her transfer requests expressed no more than a personal preference. The ADA does not impose an obligation on employers to accommodate personal preferences. See Hussein v. Hotel Employees and Restaurant Union, Local 6, 108 F. Supp.2d 360, 370 (S.D.N.Y. 2000) (civil rights laws do not require such accommodation). Plaintiff's testimony establishes that she did not like either her supervisor or her job. See Pimentel Dep. at 545:4-5, 506:19-25. A request to be transferred to avoid interactions with a particular supervisor, who is simply disliked, is not reasonable. See Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 581 (3rd Cir. 1998) (noting that Congress never intended for ADA to interfere with personnel decisions, and that plaintiff's request, simply put, "essentially ask[ed] the court to establish the conditions of his employment, most notably, with whom he will work"); accord Williams, 2000 WL 33175735, at 6-8.

c. Nexus

Additionally, plaintiff's ADA claim fails because there is no nexus or causal connection between plaintiff's major life activity impaired (work) and her actual work limitations (extreme depression, severe crying spells, anxiety, insomnia, and fatigue). See Felix v. NYC Transit Authority, 154 F. Supp.2d 640, 659 (S.D.N.Y. 2001). While this Court analyzed the nexus requirement as a separate "obstacle" to establishing an ADA violation in Felix, this analytical perspective also helps determine the reasonableness of the requested accommodation.

Plaintiff offered no evidence as to how the alleged limitations affecting her ability to work would be reasonably accommodated by her requested transfer. Plaintiff contends that the transfer to the Brooklyn office would have enabled her to "function much more effectively . . . at work." Pl. Mem. at 27. Aside from the allegedly harassing supervisor and the busy pace of the Manhattan Office, there is little difference between the two offices. As previously stated, the alleged harassment is not properly considered a work limitation caused by plaintiff's disability. As to the hectic pace of the Manhattan office, plaintiff has not alleged that her disability prevented her from completing her various job tasks at that office. To the contrary, in her deposition, plaintiff stated that her inability to process the normal workload of twenty cases per day was a structural problem faced by all caseworkers in the office and not due to her Hepatitis C. See Pimentel Dep. at 504:3-9.

To the extent that this hectic pace of the Manhattan office created "stress" in plaintiff's life, as previously discussed, employees are not entitled to a stress-free workplace under the ADA. See, e.g., Gaul, 134 F.3d at 581.

Plaintiff's contention that the transfer would have "greatly reduced the time that [she] spent commuting for her interferon injections and weekly blood work" does not provide a sufficient basis for the proposed accommodation for several reasons. Pl. Mem. at 27. First, plaintiff offers no evidence that she was unable to receive her treatment due to her work schedule, only that it would reduce her commuting time. Second, the requested accommodation by plaintiff was a transfer "out of child support altogether" and not specifically to the Brooklyn office of child support. Because plaintiff's request did not specify any particular location, she cannot now argue that one particular location was more convenient for her medical treatment. Third, there is no evidence in the record that defendant was ever notified, prior to plaintiff's federal action, that plaintiff needed the transfer to facilitate her medical treatment.

Although plaintiff contends that the requested accommodation was a transfer to the Brooklyn office, plaintiff's own written memorandum contains the subject line: "Third Request for Medical Transfer Out of Child Support altogether." 9/8/99 Request for Transfer Memo by Sylvia Pimentel, Ex. W to Def. Mem. Plaintiff's first request for transfer mentions the Brooklyn Office, but cannot be considered because it was not a request in conjunction with the treatment of her Hepatitis C. See supra Part III.C.1.c. The only applicable evidence in the record concerning the Brooklyn Office is the deposition testimony of ACS officials explaining their reasons for not approving her transfer to that office. See 6/14/01 Deposition of Francis Richards, Ex. 13 to Pl. Mem., at 10:14 to 11:21 (because the Brooklyn office was downsizing, it had no true "vacancies"); see also 5/18/01 Deposition of Shanon Rashada, Ex. CC to Reply Mem. at 13:10 to 14:23 ("[I]f they request a transfer to an area out of my control, then I forward it to ACS to deal with.").

Neither of the two doctors' notes plaintiff attached to her third transfer request mentioned the need for such an accommodation. The letter from Dr. Carmen Co simply makes a "strong recommendation" that plaintiff be transferred to a "less stressful position." 11/1/99 Letter from Dr. Co, Ex. 6 to Pl. Mem. The letter from Dr. Geders also makes no mention of any specific accommodation required and is simply a notification that plaintiff may experience flu-like symptoms as a consequence of her treatment. See 6/21/99 Letter from Dr. Geders, Ex. 6 to Pl. Mem. A close reading of plaintiff's medical file indicates that the stress she reported was not corroborated by independent medical findings and was not a direct result of her disability. See Geders Ltr. ("On presentation she [plaintiff] was extremely depressed, tearful, and anxious . . . in relationship to her request to transfer out of the child welfare system secondary to patient perceived harassment at work. . . . [P]atient subsequently [reported] that she was having difficulties at work and faced possible termination.").

For these reasons, plaintiff's requested transfer was not a reasonable accommodation, as a matter of law, even if she can establish that she was suffering from an ADA-qualifying disability. Therefore, plaintiff cannot prove that she was discriminated against by her employer in violation of the ADA.

D. Retaliation for Filing Harassment Charges

Title VII prohibits an employer from retaliating against an employee for complaining of prohibited employment discrimination, stating that "it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3 (a) (alteration added). "Retaliation claims under Title VII are analyzed under a three-part rule, which is an "allocation of the burden of production and an order for the presentation of proof in Title VII' cases." Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)); see also Cifra v. General Electric Co., 252 F.3d 205, 215 (2d Cir. 2001);Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995).

A motion for summary judgment is analyzed under the following three-step process. First, the plaintiff must make out a prima facie case of retaliation. Second, if such a case is made, the burden shifts to the defendant to articulate a legitimate, non-retalitory reason for the complained of action. Third, if the defendant meets its burden, plaintiff must then demonstrate that there is "sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation." Gallager, 139 F.3d at 349.

1. Prima Facie Case

To establish a prima facie case of retaliation, plaintiff must establish that (1) she engaged in activity protected under the statute; (2) her employer was aware of plaintiff's participation in the protected activity; (3) the employer took an adverse employment action against plaintiff; and (4) a causal connection existed between plaintiff's protected activity and the adverse employment action. McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001); Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998); Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993). The primary purpose of these anti-retaliation provisions is to prohibit an employer from retaliating against an employee because of their opposition to unlawful workplace discrimination. See Galdieri-Ambrosini, 136 F.3d at 291-92.

Plaintiff claims that she was retaliated against in various ways, including denial of her request to be transferred, for filing three charges of harassment with various administrative agencies. See 1/13/98 CCHR Complaint, 9/1/98 SDHR Complaint, and 9/22/99 SDHR Complaint. Plaintiff's filing of these three administrative charges qualifies as a "protected activity." See Gallagher, 139 F.3d at 349 (filing of EEOC complaint, for example, qualifies as "protected activity"). The other elements of the prima facie test are disputed by the parties.

a. Disciplinary Actions/Pay Rate

In plaintiff's second SDHR charge she contended she was disciplined for minor infractions and that defendant failed to pay her at the same salary level as her counterparts in retaliation for her prior complaints of discrimination. See 9/22/99 SDHR Complaint ¶ 2. Plaintiff has not presented any evidence to support her contention that she was disciplined by her employer. Indeed, plaintiff admits that she was never disciplined as a City employee. See Pimentel Dep. at 612:13 to 612:15.

Plaintiff's claim that her pay was wrongfully affected due to retalitory animus deserves little consideration. In addition to presenting no evidence to support such a claim, plaintiff is a member of a union and thus her salary is set by the union's collective bargaining agreement. See id. at 569:22 to 570:15.

Even if plaintiff's claim of pay rate retaliation was construed to encompass her separate allegation that she was denied the opportunity to earn overtime while working in a different department, that claim is time- barred. See supra Part III.A.1.b.i.

b. Performance Evaluations, Assignment Changes, and Excessive Scrutiny

In plaintiff's first SDHR charge she alleged that she received disciplinary memoranda, was unfairly rated, and was reassigned because she had filed a charge of discrimination with the CCHR. See 9/1/98 SDHR Complaint ¶ 3. Plaintiff has not offered any evidence to counter the SDHR finding that her supervisors were unaware that plaintiff had filed a charge with the CCHR. See 9/29/99 SDHR Determination and Order After Investigation, Ex. E to Def. Mem. Therefore, plaintiff has failed to establish the necessary third element of her prima facie case — that her employer had notice of the complaint.

Even if plaintiff had established the existence of the requisite notice, her claim in respect to these specific forms of retaliation would still fail because they do not rise to the level of adverse employment actions. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) ("To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities."); Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 248 (S.D.N.Y. 2001) (stating that underutilization on the job and "reprimands . . . [and even] threats of disciplinary action" do not constitute adverse employment actions); Regis v. Metropolitan Jewish Geriatric Ctr., No. 97 Civ. 0906, 2000 WL 264336, at *8 (E.D.N.Y. Jan. 11, 2000) (disciplinary memoranda and evaluations do not constitute adverse employment actions unless they affect "ultimate employment decisions such as promotion, wages, or termination"); Nicastro V. Runyon, 60 F. Supp.2d 181, 186 (S.D.N.Y. 1999) (excessive scrutiny from supervisors and requiring documentation for sick leave could not support a Title VII retaliation claim).

c. Transfer Requests

Plaintiff submitted three requests to be transferred out of the division of child services. See Compl. 5, 8. No one contests that by the time of the third request defendant had notice of plaintiff's earlier charges and that the denial of a transfer constitutes an adverse employment action. Therefore, in order to prove her prima facie case plaintiff need only provide proof of causation.

Causation can be established in two ways: directly through evidence of retalitory animus or indirectly by demonstrating that the adverse employment action followed quickly on the heels of the protected activity or through other evidence such as disparate treatment of fellow employees. See DeCinto v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987).

Plaintiff proffers three separate grounds for establishing causation: (1) plaintiff's third charge, filed in September 1999, was followed by six months of inaction on her last transfer request; (2) the ACS file on plaintiff's transfer requests contained a copy of a transcript of the testimony plaintiff gave at a May 2, 2000 City Hall hearing on unlawful retaliation within City government; and (3) evidence that defendant granted transfer requests made by plaintiff's co-workers. See Pl. Mem. at 23-24.

The close proximity of the protected activity to the denial of the transfer and the copy of the transcript provide sufficient proof of causation. Plaintiff has adduced evidence establishing a prima facie case of retaliation thereby shifting the burden to defendant to produce evidence supporting a legitimate, non-retalitory reason for denial of her transfer requests.

Plaintiff's third basis, that other employees were given transfers, is not apposite for the reasons mentioned in Part III.A.1.b.iii, supra.

2. Defendant's Burden

The defendant offers two potentially legitimate bases for its denial of plaintiff's transfer requests: (1) plaintiff did not comply with the appropriate transfer procedures, and (2) there were no "vacancies" available in the Brooklyn Office. See Reply Mem. at 12-13.

Defendant contends that its legitimate reason for denying plaintiff's transfer requests to the Brooklyn Office was that she did not request a transfer to that specific office, but rather out of OCSE altogether. See Reply Mem. at 12. This argument, however, does not address defendant's reasons for denying plaintiff any transfer. Defendant also concedes that it was considering a transfer to the Brooklyn Office "as a favor" to plaintiff. See Reply Mem. at 13, n. 9. Therefore, it is appropriate to examine any evidence of other possible reasons for the denial of the transfer requests.

Defendant does not contest it took six months to process the plaintiff's last transfer request. Rather, an employee of defendant, Mary Ann Salley, claimed that the processing of the transfer requests took so long, and was ultimately rejected, because plaintiff never responded to her requests for more information. See 6/14/2001 Deposition of Mary Ann Salley ("Salley Dep."), Ex. 14 to Pl. Mem., at 113-14. Furthermore, Salley testified that she thought plaintiff was no longer interested in the transfer. See id. at 114 ("She was not interested, because she never contacted me and told the manager in that particular meeting, she was going to take another route."). Another employee of defendant, Francis Richards, testified that there was a freeze on transfers to the Brooklyn Office because that office was downsizing and there were no "vacancies" to be filled. See 6/14/01 Deposition of Francis Richards ("Richards Dep."), Ex. 13 to Pl Mem., at 10:14-21, 11:5-21, 22:8-10.

Nothing in the record counters either of these asserted legitimate reasons. Therefore, defendant has met its burden of proffering "legitimate non- retalitory reasons" for denying plaintiff's requested transfer.

3. Plaintiff's Burden

The burden now shifts to plaintiff to offer sufficient proof that defendant's proffered legitimate reasons for denying her transfer were pretextual. Plaintiff contends that pretext is shown for the following reasons: (1) the copy of plaintiff's testimony in her transfer file, (2) defendant had a regular practice of granting medical transfers, (3) the normal processing time for such a request was three weeks but in her case took six months, (4) defendant could not identify a single individual who was denied a medical transfer in the past, and finally, (5) conflicting accounts regarding how the decision to deny plaintiff's transfer was made. See Pl. Mem. at 18-20.

While plaintiff acknowledges the possibility that the copy of her hearing testimony in her transfer file was "innocuous", see Pl. Mem. at 24, it is equally possible that defendant was monitoring plaintiff's protected activities under Title VII and that this activity influenced its decision to deny her transfer requests. Defendant does not offer any explanation, much less a legitimate one, for the inclusion of this transcript in plaintiff's file.

Defendant has not disputed that it had a practice of regularly granting medical transfers or that the evaluation of such transfers normally took three weeks. Defendant has also failed to identify any other person who was denied a medical transfer. See Norville, 196 F.3d at 97-98 (employer's departure from its usual practices and procedures is sufficient to raise inference). Defendant's contradictory explanations of how the decision to deny the transfer was made represents a genuine dispute of material fact and a sufficient basis to infer that its proffered explanations for denying plaintiff's transfer requests were pretextual. See EEOC v. Ethan Allen, Inc., 44 F.3d 116 (2d Cir. 1994) (inconsistent explanations for adverse employment action create a jury question on the issue of pretext).

Defendant's Director of Personnel, Shanon Rashada, testified that the Deputy Associate Commissioner, Mr. Richards, made the decision to deny plaintiff's transfer. See 5/18/01 Deposition of Shanon Rashada at 51 ("Q: You stated that Mr. Richards made a decision to deny the transfer; correct? A: Yes."). Mr. Richards, however, denied even knowing if medical transfers were ever granted. See Richards Dep. at 57-58 ("Q: [I]s a transfer one of the accommodations that is permitted according to your knowledge? A: I don't know.").

While none of this evidence is conclusive of defendant's retalitory motivation, it is sufficient circumstantial evidence to permit a rational factfinder to infer that defendant would have granted plaintiff a transfer had it not been for her various administrative complaints. Accordingly, summary judgment on plaintiff's claim of retalitory denial of transfer is inappropriate.


Defendant's motion for summary judgment is granted as to plaintiff's claims of discriminatory demotion, hostile work environment, and ADA discrimination, but is denied as to plaintiff's claim of retaliation. A conference is scheduled for December 18 at 3:00 p.m.

Summaries of

Pimentel v. the City of New York

United States District Court, S.D. New York
Dec 11, 2001
00 Civ. 0326 (SAS) (S.D.N.Y. Dec. 11, 2001)
Case details for

Pimentel v. the City of New York

Case Details

Full title:SYLVIA PIMENTEL, Plaintiff v. THE CITY OF NEW YORK, Defendant

Court:United States District Court, S.D. New York

Date published: Dec 11, 2001


00 Civ. 0326 (SAS) (S.D.N.Y. Dec. 11, 2001)

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