564 F.Supp.3d 140
E.D.N.Y2021Background
- Ivan L. Cherry, a gay, HIV-positive man, worked as a Level 3A secretary for NYCHA from Oct. 2010 until his termination effective Sept. 26, 2014, after a Civil Service Law §75 hearing recommending dismissal.
- Cherry alleges gender, sexual-orientation, and disability discrimination, hostile work environment, and retaliation by supervisors (primarily Marie Bazelais) and coworkers at Unity Plaza and later at Garvey Plaza; he filed EEOC charges in 2011 and (an intake/charge issue) in 2013/2015.
- Core factual allegations: supervisor made repeated gendered and homophobic comments; Cherry was assigned a heavier workload than a female counterpart, required to work overtime but sometimes not paid for hours he claims he worked, excluded from kitchen facilities after supervisors learned of his HIV status, and publicly humiliated about medical issues.
- NYCHA imposed progressive counseling memoranda, suspended Cherry after a July 2013 incident with a coworker, held a Section 75 trial finding him guilty of misconduct, and the Civil Service Commission and state court denied his challenges.
- Defendants moved for summary judgment on federal (Title VII) and state/city (NYSHRL/NYCHRL) discrimination, hostile work environment, and retaliation claims; the court granted in part and denied in part the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cherry established a prima facie Title VII/NYSHRL gender-discrimination claim based on assignment of non-secretarial work | Bazelais assigned extra/non-secretarial tasks and an excessive workload compared to a female secretary | Tasks were within Level 3A job duties; not materially adverse | Court: No triable issue that tasks were outside job description; summary judgment granted on non-secretarial-work theory (Title VII/NYSHRL), and on same NYCHRL aspect |
| Whether assignment of disproportionately heavy workload and denial of overtime constitute adverse actions and support gender discrimination | Workload was heavier than female colleague; required to work overtime and sometimes unpaid; remarks that "this is a woman's job" show discriminatory motive | Deny discriminatory motive; claim that overtime was paid when authorized and tasks were consistent with title | Court: Triable issues exist on disproportionate workload and overtime denial; summary judgment denied on these claims (Title VII, NYSHRL, NYCHRL) |
| Whether Cherry established NYSHRL disability discrimination and hostile work environment (Unity and Garvey) based on HIV status | Supervisor barred use of kitchen sink/drying rack, forced bathroom use, publicly disclosed/harassed him about medical issues, denied leave/pay at Garvey | Defendants deny knowledge of HIV status and deny the adverse-facility or leave incidents; offer payroll/attendance records and witness testimony | Court: Disputed facts create triable issues; summary judgment denied on NYSHRL/NYCHRL disability discrimination and hostile-work-environment claims |
| Whether Cherry's termination and Section 75/Article 78 outcomes can be relitigated as retaliation or discriminatory termination | Charges were false and retaliatory for EEOC complaints; termination resulted from retaliatory process | Section 75 hearing, CSC decision, and state Article 78 denial are entitled to preclusive effect as to the factual bases for termination | Court: Issue preclusion bars relitigation of termination/retaliation tied to the Section 75 findings; summary judgment granted on retaliation claims and on termination-based discrimination claims under Title VII/NYSHRL (some NYCHRL aspects granted) |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishes burden-shifting framework for discrimination claims)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (evidence that employer's explanation is unworthy of credence may show pretext)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for summary judgment and what constitutes a genuine dispute)
- Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) (plaintiff must offer more than conclusory allegations to defeat summary judgment in discrimination cases)
- Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) (discusses when an increased workload can be an adverse employment action)
- Vance v. Ball State Univ., 570 U.S. 421 (2013) (defines when an employee is a "supervisor" for vicarious liability in hostile-work-environment cases)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (retaliation standards and the importance of context in assessing adverse actions)