MEMORANDUM & ORDER
Plaintiff Sylvia Bowen-Hooks brings the above-captioned action against Defendants City of New York, Commissioner David Frankel, Sheriff Lindsay Eason, Chief of Operations Timothy LaRose, First Deputy Sheriff Oliver Pu-Folkes and Chief of Staff Peter Sammarco, alleging claims of race and gender discrimination, retaliation
I. Factual Background
a. Plaintiffs duties in the Sheriffs Office
Plaintiff is employed as a lieutenant in the Sheriffs Division of the Department of Finance (“Sheriffs Office”). (Defs. 56.1 ¶ 1; PI. 56.1 ¶ 1.) Plaintiff began working with the Sheriffs Office in 1986, and the Sheriffs Office became part of the Department of Finance (“DOF”) in 1995. (Defs. 56.1 ¶ 3; PI. 56.1 ¶ 3.) Plaintiff was promoted to the position of lieutenant in 1997, after passing a civil service test and being selected from an eligible list.
b. 2006 window covering incident
According to Plaintiff, when she began working in the office at 30-10 Starr Avenue in 2004, all of the offices in the building had already been allotted to the white male lieutenants, leaving her as the only lieutenant who was not allotted an office. Plaintiff found and used a “tape room” off the main hallway as her office. (PI. Dep. 62:22-63:5, 218:14-220:4.) The door to this room had a window, which Plaintiff covered with opaque material. (PI. Dep. 63:5-6.) Plaintiff covered the window because she counseled deputies in her office, which required privacy, and because she occasionally changed in her office. (Defs. 56.1 ¶ 70 (citing PL Dep. 220:23-221:16); PI. 56.1 ¶ 70 (citing PI. Dep. 62:22-25, 63:1-6).) Plaintiffs office was off the main hallway with ample foot traffic, whereas the offices of all the other lieutenants were either inside a larger room, or had solid wood doors. (PI. Dep. 217:21-219:6, 220:17-221:16.)
In April or May of 2006, Sammarco began working in the office at 30-10 Starr Avenue as an Integrity Officer. (PI. Dep. 2:5-6, 223:4.) Sammarco observed that several offices in the building had material covering the windows on the doors, or the windows between the offices and hallways, and contacted Sheriff Eason inquiring about the covered windows. (Defs. 56.1 ¶¶ 56, 58; PI. 56.1 ¶ 58; Defs. Ex. J, Deposition of Peter Sammarco (“Sammarco Dep.”) 63:25-65:2.) Sammarco did not believe this was a good business practice. (Defs. 56.1 ¶¶ 58; PI. 56.1 ¶¶56, 58; Sam-marco Dep. 63:25-65:2.) On May 19, 2006, LaRose visited the office at 30-10 Starr Avenue and subsequently sent an email to two Undersheriffs requesting that the opaque material covering the windows be removed immediately unless there was a work-related justification for the windows to be covered. (Defs. 56.1 ¶ 53; PL 56.1 ¶ 53; Defs. Ex. I.) According to Defendants, everyone removed their window coverings. (Defs. 56.1 ¶ 60). According to
c. 2006 EEO complaint and EEOC charge
According to Plaintiff, on May 22, 2006, she called the EEO Officer for the DOF, Annie Long, to complain about the directive, indicating that because she was the only female lieutenant in the building, the directive prevented her from enjoying her privacy like the “other bosses.” (PI. 56.1 ¶ 47; PI. Ex. B and Defs. Ex. C (“2006 EEOC charge”) at 2.) Plaintiff states that EEO Officer Long contacted management, although Plaintiff did not know precisely who, and the next day Long called Plaintiff to discourage her from moving forward with a formal EEO complaint. (PI. 56.1 ¶ 47, PI. Dep. 61:22-62:10, 65:1-19; 2006 EEOC charge at 2.) Plaintiff contends that the day after this conversation with the EEO Officer, Plaintiff was assigned additional duties working in other units. (PI. 56.1 ¶ 47.)
Plaintiff filed a charge with the EEOC approximately three months later, on August 22, 2006, alleging race and gender discrimination in connection with the directive to remove the window coverings, (Defs. 56.1 ¶ 55; PI. 56.1 ¶ 55; 2006 EEOC charge), and in connection with being assigned “menial tasks” on May 23, 2006, (2006 EEOC charge at 2). Plaintiff received a right-to-sue letter but decided not to sue at that time. (PI. Dep. 70:21-71:11.) In the 2006 EEOC charge, Plaintiff noted that three other offices were affected by the directive, two of which opened onto a smaller area with just a small number of staff, and one of which belonged to Sam-marco, but because those offices did not open onto a main hallway, the occupants of those offices did not have their privacy interfered with by the directive in the same way her privacy was affected. (2006 EEOC charge.) Plaintiff also noted that immediately after she had a conversation with the EEO officer in the Sheriffs Office, she was asked to take on the duties of another unit, and assigned menial tasks. (Id. at 2.)
d. Performing Undersheriff duties
Plaintiff claims that, in or about November 2007, Plaintiffs direct supervisor, Un-dersheriff Peter Talamo, retired, and Plaintiff took over some of his responsibilities including generating reports, signing time-sheets for the Firearms and Auto Theft unit, attending meetings and making decisions. (Defs. 56.1 ¶ 136; PI. 56.1 ¶ 136; PI. Dep. 144:1-19.) Plaintiff performed these additional duties without a direct supervisor for the approximately seven months it took to find a replacement for Talamo. (Defs. 56.1 ¶ 138; PI. 56.1 ¶ 137.) The work caused her to stay late “a couple of times like 20 minutes, a half an hour,” but she did not request overtime pay for these hours. (PL Dep. 146:14-18.) Nor did Plaintiff receive additional compensation for performing these additional duties. (PI. 56.1 ¶ 137.) Plaintiff was a Level 1 Lieutenant, while individuals with the title of Undersheriff were Level 2 Lieutenants.
e. Assignment to Kendra’s Unit
In June 2009, the Cigarette Tax unit was disbanded. (Defs. 56.1 ¶ 80; Pl. 56.1 ¶ 80; Pl. Dep. 72:21-73:17.) Plaintiff was transferred to “Kendra’s Unit,” which works with citizens with uncontrolled mental illness, and was moved to a different office at 30-10 Starr Avenue. (Defs. 56.1 ¶¶ 81-82; Pl. 56.1 ¶¶ 81-82.) Plaintiff was given the title of “Administrative Lieutenant,” with the responsibility to perform administrative functions and provide additional supervisory coverage when the lieutenant with primary responsibility for the unit was not present. (Defs. 56.1 ¶ 86; Pl. 56.1 ¶ 86.) Plaintiff claims that the title of administrative lieutenant had never existed before, and had never been given to any of the male lieutenants. (Pl. Dep. 82:22-25.) According to Plaintiff, Kendra’s Unit was a “voluntary” unit, and employees were assigned to it only when they requested the assignment but Plaintiff was assigned to the unit even though she had not requested assignment to this unit. (Pl. 56.1 ¶¶ 81, 83; Pl. Dep. 77:11-20.) A document listing all the transfers within the Sheriff’s Office over a 3-year period indicates that Plaintiff requested a transfer to Kendra’s Unit. (Pl. Ex. K at 3.) Plaintiff claims that this document is “inaccurate.” (Pl. Dep. 77:13-16.) Plaintiff asserts that the transfer to Kendra’s Unit was “punishment” because the work was “just a repetition of the same thing of picking up mentally ill people.” (Pl. Dep. 89:2-18.)
f. Transfers
When Cigarette Tax unit was disbanded in June 2009, approximately one-quarter of the staff — 25 deputies and lieutenants — in the Sheriffs Office were transferred. (Defs. 56.1 ¶ 80; Pl. 56.1 ¶80; Pl. Dep. 72:21-73:17.) Plaintiff was not aware that the Cigarette Tax unit would be disbanded and that the transfers would be taking place, and did not have an opportunity to request to be transferred to a unit closer to her home. (Pl. 56.1 ¶¶ 79-81; Pl. Dep. 81:2-16.) Plaintiff had previously informed her supervisor, Talamo, that she would prefer to work out of the Queens Law Enforcement Bureau, located at the western edge of Queens, closer to her home, (Pl. Dep. 87:21-88:6), but Chief Ta-lamo was no longer with the Sheriffs Department at the time of the June 2009 Transfers, (Id. at 88:7-8). Plaintiff did not request to be transferred to the Queens location after she learned about the transfers in June 2009. (Id. at 88:9-19.) Plaintiff claims that as a result of the June 2009
g. Discipline and scrutiny
i. September 2009 meeting
According to Plaintiff, in September 2009 several incidents took place illustrating a pattern of retaliatory disciplinary actions taken against her. On September 4, 2009, a meeting took place between Kendra’s Unit personnel, Sheriffs Office leadership, and personnel from the New York City Department of Health and Mental Hygiene (“DOHMH”), which provides all of the funding for the Kendra’s Unit operations. (Defs. 56.1 ¶¶ 96, 98-99; Pl. 56.1 ¶¶ 96, 98-99.) During the meeting, Plaintiff became involved in a verbal “back and forth” with Dr. Medina, an employee of DOHMH, during which Plaintiff raised her voice. (Defs. 56.1 ¶¶ 101-108; Pl. 56.1 ¶¶ 101-103.) Sammarco, who was taking notes at the meeting, (Sammarco Dep. 40:22-41:7), included a summary of the exchange in the meeting minutes, (Pl. Ex. M (“September 4, 2009 Meeting Minutes”).) Sammarco’s characterization of the exchange made Plaintiff look bad, without providing the full context of the exchange and without indicating that Dr. Medina shared fault. (Pl. 56.1 ¶ 108.) Plaintiff asserts that Sammarco did this in retaliation for Plaintiffs previous complaints of discrimination and harassment against Sammarco. (Pl. 56.1 ¶ 103.)
At that same meeting, after the staff from DOHMH left, Plaintiff was asked to fill in on field duty to replace a sergeant who had been injured, which Plaintiff declined to do. (Defs. 56.1 ¶¶ 104-105, 108; Pl. 56.1 ¶¶ 104-105, 108; Pl. Dep. 97:7-10.) Plaintiff was “taken aback” and “shocked” by the request, and responded that she had been at the Sheriffs Office a long time, she was 50 years old, and she did not want to go into the field.
Immediately after the September 4, 2009 meeting, Pu-Folkes had a conversation with Plaintiffs supervisor, Undersher-iff Doyle, regarding Plaintiff wearing jewelry while in uniform during the meeting, in violation of the Sheriffs Office code. (Sammarco Dep. 41:12-42:20; Defs. Ex. L, Deposition of Oliver Pu-Folkes, 19:6— 22:21.) Later that day, Plaintiffs supervisor, Undersheriff Doyle, had a discussion with Plaintiff about wearing jewelry while in uniform. (Defs. 56.1 ¶ 114; PL 56.1 ¶ 114.) Doyle memorialized that conversation in a memorandum addressed to La-Rose on September 18, 2009. (Defs. Ex. M.) Plaintiff contends that she also received a counseling memorandum about wearing jewelry, however, this memorandum is not in the record, and Plaintiff could not say whether it had ever been placed in her personnel file. (PI. 56.1 ¶¶ 113, 118; PI. Dep. 114:16-21.) Plaintiff further contends that, although other male officers wear jewelry, they were only verbally reprimanded for their first infraction, while Plaintiff received a counseling memorandum for her first infraction.
iii.Counseling memorandum regarding statements about age
On September 8, 2009, Doyle had a discussion with Plaintiff about Sheriffs Office EEO policy, informing Plaintiff that her reference to her age at the September 4, 2009 meeting mistakenly suggested that age could be a qualifier for job assignments. (Defs. 56.1 ¶ 114; PI. 56.1 ¶114; Defs. Ex. M.) Plaintiff received a related counseling memorandum from Doyle on Oct. 13, 2009. (Defs. 56.1 ¶ 116; Defs. Ex. O (“Counseling Memorandum dated October 13, 2009”); PI. Dep. 114:21-23.) On September 30, 2009 Doyle received a counseling memorandum from First Deputy Pu-Folkes noting that, during the September 4, 2009 meeting, two of Doyle’s subordinates, Plaintiff and Lieutenant Zane, had expressed a “strong view that safety concerns justify making field assignments based on age as a qualifier,” and that Doyle had missed an opportunity to enforce the EEO policies and procedures of the Sheriffs Office by not correcting these misstatements. (Defs. 56.1 ¶ 115; PI. 56.1 ¶ 115; Defs. Ex. N (“Memorandum to Un-dersheriff Doyle dated Sept. 30, 2009”).)
iv.Directive to wear full uniform
Plaintiff claims that in September 2009 she was ordered to wear her full uniform at all times, although it was the practice in the Sheriffs Office that officers who were not in the field “were allowed to be in civilian clothes], and I was allowed to be” in civilian clothes. (PI. Dep. 130:19-131:12.) Plaintiff claims that a “couple of weeks” after she was individually directed to wear her full uniform at all times, Defendants issued a directive requiring the rest of her unit to do the same. (PI. Dep. 137:7-24, 138:16-21.) On September 18, 2009 Doyle sent an email to Plaintiff and three other Lieutenants advising that, effective September 23, 2009, all unformed
h.2009 EEO complaint
On September 11, 2009, Plaintiff filed an EEO complaint alleging discrimination on the basis of age, gender, color, race and being a union delegate, and retaliation for filing a complaint, based on the actions of Eason, Pu-Folkes, and LaRose in asking her to perform the tasks of a sergeant. (Defs. 56.1 ¶ 120, Pl. 56.1 ¶ 120; Defs. Ex. E and Pl. Ex. S.) Plaintiff wrote that “[s]ince I stated to management I didn’t want to do the job of a Sgt. I have been harassed by memos written to my supervisor about me from management causing me undue distress.” (2009 EEO Complaint.)
i.2010 EEOC charge
Plaintiff filed a charge with the EEOC on or about January 7, 2010, alleging race and gender discrimination, retaliation and a hostile work environment, (Defs. 56.1 ¶ 50, Pl. 56.1 ¶ 50), concerning an assortment of actions by Defendants, including (1) being subject to unfair discipline, (2) not being awarded discretionary pay, (3) being denied the opportunity for overtime pay, (4) not being transferred to an office closer to her home, (5) being subjected to excessive monitoring and criticism, (6) being “subjected to a hostile work environment whereby my authority as a Lieutenants is undermined, I am given menial tasks, subject to stalking,” and (7) not receiving awards, (Defs. Ex. F (“2010 EEOC charge”) at 2).
j.Scrutiny of Plaintiffs supervisor
Beginning in January 2010, Plaintiff began an eleven-month external course to train as a professional chef, and her supervisor allowed her to change the hours of her shift to 4:00 am to 12:00 pm to accommodate her course. (Defs. 56.1 ¶¶ 39-40; Pl. 56.1 ¶¶ 39-40.) Four months into the start of her culinary program, Chief of Operations LaRose learned about Plaintiffs change in hours and told Plaintiffs supervisor that such a change of hours was “not acceptable.” (Pl. 56.1 ¶ 43; Pl. Ex. D and Defs. Ex. D, LaRose Dep. 26:10-30:24.) Plaintiff contends that this additional scrutiny and LaRose’s attempt to have her hours changed was inconsistent with the practice of the Sheriffs Office of allowing Undersheriffs to give their lieutenants their preferred shift hours, and of permitting other, male, lieutenants to work their preferred hours to accommodate child care, a second job, or other needs. (Pl. 56.1 ¶ 45; Pl. Dep. 23:8-24:23.) Plaintiff continued on her 4:00 a.m. to 12:00 p.m. hours until her course was completed in November 2010, and then returned to her regular shift hours. (Defs. 56.1 ¶ 44; Pl. 56.1 ¶ 44.)
k.2010 window covering incident
In August or September 2010, Sammar-co returned to the office at 30-10 Starr Avenue as Chief of Operations, and twice ordered Plaintiff to remove the covering from her window. (Defs. 56.1 ¶¶ 64-65; Pl. 56.1 ¶ 65.) On December 8, 2010, Sam-marco emailed Plaintiffs supervisor, Doyle, noting that Plaintiff still had not removed the cover from her window and informing Doyle that if the cover was not removed by the end of the following day, Sammarco would seek charges against Plaintiff for disobeying an order. (Defs. 56.1 ¶ 66; Defs. Ex. K.) According to Sam-
1.Sexual harassment allegations
According to Plaintiff, in 2006 Sammarco would walk past her office as many as 20 times per day, and “every time he went past my door, he had to look in. You know, like look. And then keep walking.” (PI. Dep. 225:5-11.) Plaintiff also claims that Sammarco would “stare” at her when she walked down a hallway, and would walk behind her in a “menacing” manner, (Id. at 226:2; Defs. 56.1 ¶ 73 (citing PI. Dep. 225:4-226:19, 227:8-228:8); PI. 56.1 ¶ 73), and that he “had a habit of staring at black women” and three other women in the office had also experienced Sammarco “staring” at them. (PI. Dep. 232:5-234:14.) “Sammarco [also] had a habit of being present at places where such presence was neither needed nor justified, as Sergeant Jefferson Rodriguez from the Warrants Unit complained about Peter Sammarco being present between sergeants for no reason during morning assignments.... Hence, not only Plaintiff, but several officers had problems with hostility and discomfort that Sammarco created at the Sheriffs Office.” (PI. 56.1 ¶ 59.) According to Defendants, Sammarco would walk through the building to review the work of personnel, where they are working and what they are doing. (Defs. 56.1 ¶ 74 (citing Sammarco Dep. 55:17-56:12).)
In November 2010, both Plaintiff and Sammarco were in the garage of the office at 30-10 Starr Avenue. (Defs. 56.1 ¶ 75; PI. 56.1 ¶ 75.) According to Plaintiff, Sam-marco followed Plaintiff into the garage, and when she turned around, he stood “glaring” at her. (PI. Dep. 227:21-22, 228:15-20.) Sammarco continued to stand and glare at Plaintiff while she got into her truck and drove through the garage until she exited the garage. (Defs. 56.1 ¶75; PI. 56.1 ¶ 75; PI. Dep. 228:15-229:6.) According to Sammarco, he was looking for the deputy who was in charge of the fleet of vehicles, and when he could not find the deputy in the deputy’s office near the garage, Sammarco entered the garage, saw Plaintiffs truck driving out, and looked to see if the driver was the deputy he was looking for. (Defs. 56.1 ¶ 76 (citing Sam-marco Dep. 71:6-72:15).)
m.2010 EEO complaint
On December 17, 2010, Plaintiff filed an internal EEO complaint alleging discrimination on the basis of color, gender and race, and sexual harassment and retaliation, based on Sammarco’s directive to remove the window covering, his practice of “glaring and peeking through windows at myself and other women,” and the incident in the garage. (Defs. 56.1 ¶ 68; PI. 56.1 ¶ 68; Defs. Ex. H (“December 2010 EEO Complaint”).)
n.Evaluations
Plaintiff received an evaluation of “Good,” lower than “Superior” or “Outstanding” for each of the three years between 2002 and 2005. (Defs. 56.1 ¶¶ 145-147; PI. 56.1 ¶¶ 145-147.) For the 2005-06, and 2006-07 years, Plaintiff received a rating of “Superior,” just below “Outstand
o. Overtime
Overtime assignments in the Sheriff’s Office required pre-approval, and at times offers to work overtime were made by email to all staff or to all lieutenants in the Sheriffs Office. (PI. Dep. 201:19, 202:17-22.) According to Plaintiff, even when such an email was circulated, certain individuals had already been “pre-picked” to be offered the overtime assignments, and Plaintiff was never one of those individuals. (Pl. Dep. 203:25-204:1.) Plaintiff could not offer a specific time when such a pre-selection had taken place, or likely taken place.
In September 2009 Doyle requested overtime for the entire Kendra’s Unit but LaRose denied the request. (PL 56.1 ¶ 175 (citing PI. Ex. Y, Emails dated Sept. 21, 2009 re: Overtime).) Plaintiff, like all officers in the Warrants Unit, received overtime in June 2010 at a time when the Warrants Unit was trying to use up its budget surplus prior to the end of the fiscal year. (PI. 56.1 ¶ 177 (citing PI. Dep. 205:12-19).)
p. Union activity
Plaintiff was on the board of her union and active as a lieutenant’s representative for the Sheriff’s Office. (PI. Dep. 213:7-10.) Sometime in late September or early October 2009, the union published a photograph of Pu-Folkes inappropriately dressed in a uniform that mixed his New York City Police Department attire with his Sheriffs Office regalia while on duty during a detail with the United Nations, giving the incorrect impression that he was a four-star officer with the NYPD. (PI. Dep. 209:5-211:11.) Shortly after the publication of that photograph, Plaintiff contends that she began to receive additional “attention” in the form of memoranda from LaRose to her immediate supervisor, Doyle, inquiring about Plaintiffs daily activities, how long it took her to complete certain tasks, and why Plaintiff was not involved in other tasks. (PI. Dep. 212:11-216:3.)
II. Discussion
a. Standard of Review
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Bronzini v. Classic Sec., L.L.C.,
b. 2006 EEOC right-to-sue letter
Defendants argue that the allegations contained in Plaintiffs 2006 EEOC charge, for which she received a right-to-sue letter but did not bring a lawsuit, are barred as she did not file a suit within 90 days of receiving her right-to-sue letter. (Defs. Mem. 5 n. 3.) Defendants are correct. Plaintiffs failure to act on the right-to-sue letter she received from the EEOC charge in response to her August 22, 2006 charge of discrimination bars her from now bringing those claims as part of the instant action. A plaintiff must file a lawsuit within 90 days of receiving a right-to-sue letter. 42 U.S.C.A. § 2000e-5(f)(l); see also Friedman v. Swiss Re Am. Holding Corp.,
Plaintiff cannot “save” her claims regarding the acts that were the subject of her 2006 EEOC charge, and for which she received a right-to-sue letter, by including them in her 2010 EEOC charge, as a plaintiff may not bring claims “involving exactly the same facts” that comprised an earlier right-to-sue letter on which a plaintiff did not act. Lo v. Pan Am. World Airways, Inc.,
c. Failure to exhaust
Plaintiff has failed to exhaust her administrative remedies with regard to events which took place during 2010. Plaintiff filed suit on December 22, 2010, alleging claims primarily based on her January 7, 2010 EEOC charge, for which she received a right-to-sue letter from the EEOC on September 22, 2010. However, Plaintiffs action is also based on conduct that occurred after Plaintiff filed her EEOC charge in 2010. The actions that took place subsequent to Plaintiff filing her January 7, 2010 EEOC charge are: (1) Plaintiff being singled out and targeted to comply with the window directive in 2010, (Defs. 56.1 ¶ 64), (2) the “garage incident” with Sammarco, (Defs. 56.1 ¶¶ 75-76), (3) Plaintiffs supervisor being reprimanded in approximately May 2010 for permitting Plaintiff to change her shift hours to accommodate a culinary arts course, (PL 56.1 ¶43), and (4) the comments appended to her 2009-2010 evaluation by LaRose in
Defendants raised Plaintiffs failure to exhaust as an affirmative defense in their Answer, (Docket Entry No. 14 ¶ 108), but they did not move to dismiss those claims based on Plaintiffs failure to exhaust her administrative remedies. Instead, Defendants addressed the merits of each of the unexhausted claims in their motion for summary judgment. The Court finds that Defendants have waived their objection to Plaintiffs failure to exhaust these claims.
d. Statutes of limitations
i. Title VII claims
Plaintiff is time-barred from all Title VII claims concerning conduct that took place prior to March 13, 2009. A plaintiff seeking to bring claims pursuant to Title VII must file a complaint with the EEOC or equivalent state agency within 300 days of the challenged conduct. 42 U.S.C. § 2000e-5(e)(1); see also Ragone v. Atl. Video at Manhattan Ctr.,
At oral argument counsel for Plaintiff argued that the Court should consider that took place prior to March 13, 2009, that were part of Plaintiffs hostile work environment and discrimination claims under the “continuing violation” to the 300-day limitations period. (Oral Arg. Tr. 12:16-23.)
The continuing violation exception to the limitations period for Title VII complaints permits courts to consider “ ‘claims that the discriminatory acts were part of a continuing policy and practice of prohibited discrimination,’ where ‘one act of discrimination in furtherance of the policy occurred within the limitations period.’ ” Lugo v. City of New York,
“However, the continuing violations doctrine does not apply to discrete acts of discrimination, ‘even if they are related to acts alleged in timely filed charges.’ ” Ugactz v. United Parcel Serv., Inc., No. 10-CV-1247,
Plaintiffs hostile work environment claims include a claim of sexual against Sammarco as well as a claim that she “has been subjected to a hostile environment whereby her authority as a Lieutenant is undermined and she is given menial tasks.
As to the sexual harassment claim against Sammarco, Plaintiff argues that “Plaintiffs claim[] with regard to [the] window-covering directive is not barred, because although the issues arose in 2006, the discrimination occurred in 2010 as well, after Peter Sammarco came back to work in the same building as Plaintiff.” (PI. Opp’n Mem. 8.) Contrary to Plaintiffs Sammarco’s acts of sexual that took place in 2006&emdash;namely, Sammarco’s leering and staring at her and passing by her office 20 times per day&emdash; cannot be considered part of the hostile work environment that created when he returned to office more than three years later. Sammarco was moved from his position at the office located at 30-10 Starr Avenue in mid-2007 and had little to no contact with Plaintiff until 2010. Plaintiff does not that any of the other individual were responsible for any sexual harassment during the three-year interval. Plaintiff cannot show that the hostile work environment allegedly caused by sexual harassment in 2006 was when there was undisputedly a period where no harassing acts were being committed. See Fitzgerald v. Henderson,
Although Sammarco’s actions in 2010 may have been very similar to his actions in 2006, that similarity alone is insufficient to render continuous what is essentially two separate instances of alleged harassment separated by more than three years. His actions are precisely the type of discriminatory acts” that “are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Morgan,
In addition, to the extent that Plaintiff is relying on the incidents that arose in 2006 with respect to the
Whether the continuing violation theory can revive claims that are otherwise time-barred by a plaintiffs failure to act on a right-to-sue letter has not been decided by the Second Circuit. However, the First, Sixth, Seventh and Tenth Circuits as well as several district courts have found that a plaintiff may not rely on the continuing violation theory to revive time-barred claims. See Loubriel v. Fondo del Seguro del Estado,
Plaintiff’s second hostile work environment claim — that Defendants created a demeaning work environment — as pleaded and argued, is comprised solely of incidents that occurred in 2009. {See Compl. ¶¶ 26-29; 2010 EEOC charge at 4 (describing events during and subsequent to September 2009 under heading “Hostile Work Environment and Retaliation); PI. Opp’n Mem. 20-21; Tr. 79:24-81:8.) Accordingly, Plaintiff does not need to rely
The remainder of Plaintiffs claims, discrimination and retaliation, are comprised of discrete acts by Defendants that are not entitled to the continuing exception. See, e.g., Valtchev,
ii. The NYSHRL and NYCHRL claims
Under the NYSHRL and the NYCHRL, the statute of limitations is three years. See N.Y. C.P.L.R. § 214(2); N.Y.C. Admin. Code § 8-502(d); see also Sotomayor v. City of New York,
Plaintiff filed her Complaint in this case on December 22, 2010. The underlying EEOC charge was pending with the EEOC between January 7, 2010, and 22, 2010, or for 319 days, tolling the limitations period on Plaintiffs claims
iii. Sections 1981 and 1983
The statute of limitations for claims brought under § 1983 is three years. Hogan v. Fischer,
e. Discrimination claims-Title VII, the NYSHRL, § 1981 and § 1983
Plaintiff claims that Defendants discriminated against her on the basis of race and gender in violation of Title VII, the NYSHRL, § 1981, and § 1983.
i. Prima Facie case
To establish a prima facie case of employment discrimination under Title
1. Adverse employment action
Plaintiff argues that she was subject to multiple adverse employment actions, which can be sorted into five main categories: (1) being required to remove the window covering from her office door and threatened with discipline for failing to do so, (PI. Opp’n Mem. 7-8), (2) receiving undesirable units and assignments, including being assigned to work in multiple units rather than being allowed to focus on one unit as were other lieutenants, (Oral Arg. Tr. 20:4-13, 29:5-18), being left without a supervisor for six to seven months and being “forced” to assume the duties of that supervisor (PI. Opp’n Mem. 7), being assigned to an undesirable unit, (id. at 9-10), and given the “made up” position of “Administrative Lieutenant,” and being asked to fill in for a sergeant in the field, (3) not being transferred to the unit closest to her home, (id. at 10), (4) becoming the target of excessive scrutiny and negative comments in her evaluation in 2010, (id. at 7-8), and (5) denial of overtime, (id. at 10-11).
The Second Circuit has made clear that an "[a]n adverse employment action is a materially adverse change in the terms and conditions of employment." Mathirampuzha,
As discussed below, the Court finds that, while Plaintiff may have been treated differently from other lieutenants in various respects, Plaintiff has not met her burden to establish that she experienced a materially adverse employment action, as required under Title VII, the NYSHRL, § 1983 and § 1981.
Plaintiff argues that a directive issued in 2006 to all staff at the office located at 30-10 Starr Avenue requiring them to keep their windows uncovered, and Sammarco’s actions in targeting Plaintiff for discipline when Sammarco returned to the office at 30-10 Starr Avenue in 2010 and observed that Plaintiffs window was covered constitute adverse actions. (PI. Opp’n Mem. 8.) As discussed supra in section Il.b, Plaintiff is barred from seeking review of all actions that took place prior to December 22, 2006 (the limitations period for her claim with the earliest limitations period, the § 1981 claim). Plaintiff is also barred from having the Court review her challenge to the directive issued in 2006 because she did not file a lawsuit within 90 days of receiving a right-to-sue letter from the EEOC in connection with precisely this claim.
As for Sammarco's actions in 2010, while the record shows that Sammar-co informed Plaintiffs supervisor in 2010 that he would seek charges against Plaintiff for disobeying his order if she did not remove the window covering, there is no evidence that Plaintiff was ever charged or disciplined and Plaintiff does not assert that she was disciplined or charged. (Defs. 56.1 ¶ 66; PI. 56.1 ¶ 66.) Rather, Plaintiff complied with the directive. A mere threat of discipline is not an adverse employment action. See Uddin v. City of New York,
B. Multiple and undesirable units and assignments
Plaintiff argues that Defendants subjected her to an adverse employment action when they (1) assigned her, between 2006 and 2008, to work in multiple units rather than allowing her to focus on just one unit as other lieutenants were allowed to do, (2) left her without a supervisor for six to seven months between November 2007 and May 2008 and “forced” her to assume the duties of that supervisor,
"[A]ssignments that are part of an employee's normal responsibilities are not `adverse employment actions' where ... the rate of pay and benefits remains the same.” Rodriguez v. Coca Cola Refreshments USA, Inc., No. 12-CV-234,
There is no evidence that Plaintiffs tasks and assignments had any actual material, as opposed to a speculative, impact on her job. The fact that Plaintiff found being assigned to work across and be responsible for multiple units "distracting from time to time" and "difficult" because she could not "concentrate on one thing all the time," is insufficient evidence to demonstrate an adverse employment action. (See Pl. Dep. 54:11-12.) Plaintiff has presented no evidence that this "distraction" or failure to concentrate on one unit had a material impact on Plaintiffs career. See Carter v. New Venture Gear, Inc.,
Similarly, Plaintiff has not shown that being left without a supervisor and being "forced" to assume her supervisor's duties was a material adverse action. Plaintiff states that the duties did not amount to considerably more work or otherwise "overloaded" her schedule. The work caused Plaintiff to work an additional 20 to 30 minutes "a few times." Plaintiff has failed to demonstrate that there was anything adverse or material about her taking on these additional responsibilities.
Plaintiff's claim that being assigned to the undesirable Kendra's Unit and given the title of "Administrative Lieutenant" was an adverse action is also unavailing. The delegation of secretarial tasks below or outside an employee's job description has been found to constitute an adverse employment action by several courts in this Circuit. See Int'l Healthcare Exch., Inc. v. Global Healthcare Exch., LLC,
At the September 4, 2009 meeting, Plaintiff was asked to fill in for a sergeant, a lower-ranked position, in the field. Although reassignment to a position that is objectively less prestigious can be considered materially adverse in the context of a retaliation claim, see Kessler v. Westchester Cnty. Dep’t of Soc. Servs.,
C. Failure to transfer Plaintiff
Plaintiffs inability to transfer to a unit located physically closer to her home, as she alleges other lieutenants were able to do, is not an adverse employment action. Plaintiff never requested a transfer in 2009.
Plaintiff states that she did not request a transfer because she was not aware that her unit would be dissolved. However, even if Plaintiff had requested and been denied a transfer, Plaintiff still would not be able to show an adverse employment action because Plaintiff could not show that the denial of transfer was a material disadvantage. Pacheco v. New York Presbyterian Hosp.,
D. Excessive scrutiny and discipline
Plaintiff argues that she suffered adverse employment actions when she was singled out for excessive scrutiny and discipline, including (1) verbal reprimands to her supervisor in 2010 for permitting Plaintiff to change her shift hours to accommodate a culinary class she was taking for a period of eleven months, and (2) LaRose ordering her supervisor to include details about Plaintiffs minor infractions on her 2009-2010 evaluation. (P1. Opp'n Mem. 7-8.) Neither of these are materially adverse actions. "[Cjriticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action." Tepperwien v. Entergy Nuclear Operations, Inc.,
Similarly, “[negative reports or evaluations alone are generally not adverse employment actions, but they can be considered adverse employment actions when they give rise to ‘material adverse changes in work conditions.’ ” Hill v. Rayboy-Brauestein,
The fact that Plaintiffs supervisor was reprimanded for a decision he made to allow Plaintiff to change her work schedule is not conduct that affected Plaintiff. Plaintiff was allowed to continue working the flexible schedule until she completed her course. (Defs. 56.1 ¶ 44; PI. 56.1 ¶ 44.) In addition, there is no evidence that the three comments made by LaRose and appended to Plaintiffs 2010 evaluation led to any discipline, or that these evaluations became material to a promotion or other employment opportunity for Plaintiff. Absent such a showing, the negative comments attached to Plaintiffs evaluations are not an adverse employment action.
E. Denial of overtime opportunities
Plaintiff asserts that she was denied the opportunity to earn overtime and that this denial was an adverse employment action, but Plaintiff has not shown that she was denied overtime. (PI. Opp’n Mem. 10-11.) A deprivation of the opportunity to earn overtime can be considered a materially adverse employment action. See Mazyck v. Metro. Transp.
Plaintiff argues that because she worked without a supervisor between November 2007 and May 2008, by the time she learned about overtime opportunities, they “were already a done deal” in that other lieutenants had already been chosen. (PI. Dep. 202:5-209:1.) While Plaintiff claimed that other staff in the Sheriffs Office who were junior to her received overtime assignments, she could not provide any specific examples, and there is no other evidence in the record to support this claim. Plaintiff concedes that on at least one occasion, notification of the opportunity to apply for overtime was distributed by a general email either to the entire Sheriffs Office or to all lieutenants. (PI. Dep. 202:17-203:24.) There is no evidence that Plaintiff requested overtime for either this or any other detail, and that she was denied overtime. Instead, Plaintiffs argument is based on her belief or hunch that, even if she had applied for overtime assignments, she would have been denied overtime because others had already been pre-selected. Plaintiffs only evidence is her own belief that this hunch was in fact true. She points to no evidence as to how individuals were selected for overtime, or testimony by others with knowledge of such “pre-selection” of favored individuals for overtime. Such bare allegations are insufficient to establish an adverse employment action. See Turley v. ISG Lackawanna, Inc.,
F. Aggregate impact
Finally, Plaintiff contends that Defendants’ actions should be considered in the aggregate rather than in isolation, arguing that “[a]lthough Plaintiff suffered no adverse employment action, such as a termination or demotion, Plaintiff suffered multiple adverse employment actions at different times at the Sheriffs Office.” (PI. Opp’n Mem. 8.) Assuming without deciding that the Court may properly aggregate all of the complained-of conduct, and doing so, the Court’s conclusion remains the same — the collective impact never resulted in any material change to the terms and conditions of Plaintiffs employment. Plaintiff speculates about how various actions could have affected her career. (See, e.g., PI. Dep. 190:22-191:6 (acknowledging that Plaintiff had not applied for a promotion to the next level, and noting that “if I had wanted to become chief,” then a counseling memorandum in her personnel filed could harm that chance).) However,
In sum, the Court finds that these actions, individually or in the aggregate, do not amount to a materially adverse change in the terms and conditions of Plaintiffs employment. See Cunningham,
Because Plaintiff cannot show that she experienced an adverse employment action, her prima facie case of employment discrimination on the basis of race and gender fails. Plaintiff’s Title VII, NYSHRL, § 1981 and § 1983 discrimination claims and are therefore dismissed.
G. Retaliation — Title VII, the NYSHRL and § 1981
Plaintiff claims that Defendants retaliated against her for complaining internally to the EEO office, for filing external complaints with the EEOC, and for “sp[eaking] out against an order” on September 9, 2009, assigning tasks to her that were beneath her job level. Title VII prohibits discrimination against an employee “because he has opposed any practice made an unlawful employment practice.” 42 U.S.C.A. § 2000e-3(a); see also Tepperwien,
Under the test, “[f]irst, the plaintiff must establish a prima facie case of retaliation. If the plaintiff succeeds, then a presumption of retaliation arises and the employer must articulate a legitimate, non-retaliatory reason for the action that the plaintiff alleges was retaliatory.” Fincher,
ii. Prima facie case
In order to establish a prima facie case of retaliation, a plaintiff must establish “(1) she engaged in protected activity; (2) the employer was aware of this activity; (3) the employee suffered a materially adverse employment action; and (4) there was a causal connection between the alleged adverse action and the protected activity.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C.,
1. Protected activity and Defendants’ knowledge
Under Title VII, protected activity includes both “opposing discrimination proscribed by the statute and ... participating in Title VII proceedings.” Jute,
The complaint can be informal&emdash; an employee does not need to lodge a formal complaint of discrimination. See Cruz v. Coach Stores, Inc.,
However, while such complaints may be informal, they cannot be so vague or “generalized” that the employer could not “reasonably have understood[] that the plaintiffs complaint was directed at conduct prohibited by Title VII.” Rojas v. Roman Catholic Diocese of Rochester,
Plaintiffs actions in filing internal EEO complaints, on May 22, 2006 and September 11, 2009, and a formal charge with the EEOC on August 22, 2006, are protected activities.
In addition, because the EEO complaints were filed with DOF, Plaintiff has demonstrated that Defendants had knowledge of those protected activities. See Papelino v. Albany Coll. of Pharmacy of Union Univ.,
However, Plaintiffs protest at the September 4, 2009 meeting to the request
Accordingly, Plaintiffs protected activities are her internal EEO complaint of May 22, 2006, her EEOC charge of August 22, 2006, and her internal EEO complaint of September 11, 2009 alleging retaliation for stating that she did not want to do the job of a sergeant. (Defs. Ex. E.)
2. Adverse action
Plaintiff alleges that Defendants took a variety of disciplinary and other actions in retaliation for her filing the 2006 EEOC charge and the 2006 and 2009 EEO complaints, including: (1) assigning Plaintiff additional duties and work in multiple units beginning in 2006,
To establish an adverse employment action for purposes of a retaliation claim, “[a] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Fincher,
The Court will assume that the counseling memorandum concerning Plaintiffs statements about her age is an adverse action and concludes that, arguably, Defendants’ actions subsequent to Plaintiffs September 11, 2009 EEO Complaint, considered in the aggregate, could dissuade a reasonable employee from making a complaint of discrimination.
A.Additional duties
Plaintiff argues that immediately after she made an informal, verbal complaint in June 2006 to the internal EEO Officer, who notified LaRose about her complaint, LaRose retaliated against Plaintiff by assigning her additional duties in the Warrants Unit, and assigning her responsibilities in several additional units, including cigarette tax, auctions and building security detail (“DECAS”). (PI. Opp’n Mem. 15.) Because LaRose’s actions in June 2006 fall outside the limitations period for all of Plaintiffs claims (the earliest of which could accrue on December 22, 2006), this action is time-barred from consideration as a retaliatory action, although the Court considers it for context regarding the retaliatory nature of Defendants’ subsequent actions.
B.Negative evaluations
Plaintiff alleges that the evaluations she received between 2007 and 2009 were retaliatory. Plaintiffs argument that receiving a negative evaluation for the 2007-2008 year
C.Failure to transfer
Plaintiff alleges that the failure of Defendants to provide her with an opportunity to transfer to a unit closer to her home in June 2009 was retaliatory. “A transfer denial is adverse when ‘the sought for position is materially more advanta
D.Sammarco’s notes from the September 4, 2009 meeting
Plaintiff argues that Sammarco retaliated against her for filing a complaint against him in August 2006, by taking notes at a meeting in September 2009 that described Plaintiff as “unprofessional ... while completely and conveniently ignoring the full context of the events at the meeting.” (PI. Opp’n Mem. 15.) Taking notes at a meeting that portray Plaintiff in a bad light is the type of “petty slights or minor annoyances that often take place at work and that all employees experience,” and cannot, as a matter of law, be a material adverse action that would dissuade a reasonable employee from protesting discrimination in the workplace. Cf. Burlington Northern,
E.Request to fill in for a sergeant
At the September 4, 2009 meeting, Plaintiff was asked to fill in for a sergeant, a lower-ranked position, in the field. Although reassignment to a position that is objectively less prestigious can be considered materially adverse in the context of a retaliation claim, see Kessler,
F. Aggregate impact of excessive scrutiny and criticism as of September 2009
Plaintiff alleges that, following the September 4, 2009 meeting and her filing an internal EEO complaint on September 11, 2009, her life became “unbearable,” as she was subject to a flurry of counseling mem-oranda and monitoring of her work. (Compl. ¶ 29; PL Opp’n Mem. 16.) Specifically, Plaintiff claims that Defendants required her to work in the field, subjected her supervisor to a flurry of emails questioning and scrutinizing her performance, required her and then her entire unit to be in uniform at all times, and subjected her to two counseling memoranda, one for a jewelry infraction and one for making a statement inconsistent with the EEO policies of the Sheriffs Office. (PI. Opp’n Mem. 15-17.) The Court recognizes that “even minor acts of retaliation can be sufficiently ‘substantial in gross’ as to be actionable.” Hicks,
As discussed infra, section II.b.3, because Defendants’ actions between September 4 and September 11, 2009 preceded Plaintiffs September 11, 2009 EEO complaint, and occurred more than three years after her August 2006 EEOC charge, they are not the result of retaliation against Plaintiffs complaints about discrimination.
Plaintiff received a counseling memorandum on October 13, 2009, discussing her comments about her age at the September 4, 2009 meeting. A formal reprimand can be an adverse action for purposes of a retaliation claim, “even when ... the letter does not directly or immediately result in any loss of wages or benefits, and does not remain in the employment file permanently,” because “it can reduce an employee’s likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy” Millea v. Metro-N. R. Co.,
The remaining actions by Defendants, considered together, could arguably dissuade a reasonable employee. For example, the comments appended by LaRose to Plaintiffs 2009-2010 evaluation may be considered the type of action that would dissuade an employee from bringing a charge of discrimination, even if the evaluation by her direct supervisor included a final rating of “Superior.” Following the Supreme Court’s decision in Burlington Northern, district courts in this Circuit have disagreed as to whether a negative performance evaluation, absent concrete negative consequences to the employee, is sufficient to support a retaliation claim. Some courts have found that negative performance evaluations, standing alone, can be considered an adverse employment action. See Siddiqi v. N.Y.C. Health & Hospitals Corp.,
Mindful of the Second Circuit’s emphasis that the inquiry into the materiality of a retaliatory action should focus on its objective likelihood of dissuading reasonable employees from challenging discrimination in the workplace, see Hicks,
The imposition of a uniform requirement, by itself, is not a material adverse action. An employer’s enforcement of its policies cannot be described as materially adverse, even if Plaintiff was “singled out” for this requirement for a short period of time.
3. Causation
To establish the causation prong of a 'prima facie case, Plaintiff must be able to show that the retaliatory actions “closely followed,” the protected activity or that there was a “reasonably close temporal proximity” between the two. Summa,
Here, Plaintiffs first protected activity took place in August 2006, when she filed an EEOC charge complaining of dis
Thus, Plaintiffs remaining allegedly adverse actions subsequent to the filing of her September 11, 2009 EEO complaint, which the Court, as discussed above, considers in the aggregate, include (1) the imposition of a uniform requirement only as to Plaintiff, (2) the issuance of a verbal and written reprimand to Plaintiff, on October 13, 2009, regarding her comments about age at the September 4, 2009 meetings, and (3) LaRose’s written comments as an addendum to Plaintiffs 2009-2010 evaluation. The first of these actions, the imposition of the uniform requirement on Plaintiff occurred, according to Plaintiff, prior to September 18, 2009, the date on which an email directive requiring all units to be in uniform at all times was circulated. The second, the October 13, 2009 counseling memorandum for her statements about age, occurred approximately one month after Plaintiffs internal EEO complaint; both of these actions are sufficiently close in time to establish a prima facie causal connection. Nearly one year passed before LaRose included an addendum in Plaintiffs 2009-2010 performance evaluation documenting three of Plaintiffs infractions, including her statements about age, and although one year would normally be too long to be considered temporally proximate, La-Rose’s action in this case is more appropriately considered a documentation and renewal of the reprimand Plaintiff received on October 13, 2009, regarding her statements about age. Under these narrow circumstances, to the extent that it continues the adversity initiated in the month following Plaintiffs September 11, 2009 EEO complaint, the Court will assume them to be in sufficient temporal proximity to that complaint to establish Plaintiffs prima facie case of retaliation.
i. Nonretaliatory reason
Once a plaintiff establishes a prima fa-cie case of retaliation, a presumption of retaliation arises and the defendant must articulate a legitimate reason for engaging in the adverse actions. Fincher,
ii. Pretext
Even assuming that Plaintiff can establish a prima facie case of retaliation, Plaintiff cannot prove that but for her filing of an internal EEO complaint on September 11, 2009, she would not have been subject to intense scrutiny and monitoring. Under the recent Supreme Court decision in Nassar, “Title VII retaliation claims must be proved according to traditional principles of but-for causation.... This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” 570 U.S. at -,
Plaintiff cannot show that, but for her filing an internal EEO complaint on September 11, 2009, complaining that the Sheriffs directive requiring Plaintiff to fill in for a lower-ranked sergeant in the field was discriminatory, that Defendants would not have singled her out for discipline and scrutiny. Plaintiff argues that Defendants’ explanation for the October 13, 2009 counseling memorandum and verbal reprimand which she received — that she had undermined the EEO policy of the Sheriffs Office — was pretext. Plaintiff claims that it was unreasonable, unfair, or untrue to depict her statement as an EEO violation as she was “merely” referencing her age to “describe her seniority and the length of her career at the Sheriffs Office.” (PI. Opp’n Mem. 16.) It is not the place of the Court to question Defendants’ business decision to impose discipline, so
Plaintiff points to the fact that other lieutenants were not singled out for discipline as evidence of Defendants’ retaliatory animus. "While Plaintiff alleges that at least one male lieutenant received only a verbal warning rather than a written warning for his first jewelry infractions, even if there was evidence to support this allegation, it would not assist Plaintiff in establishing retaliatory animus as Plaintiffs discipline for her jewelry infraction preceded her EEO complaint. As for the discipline related to her statements about age, the record suggests that another lieutenant, Zane, made similar comments at the September 4, 2009 meeting that “safety concerns justify making field assignments based on age as a qualifier.” (See Defs. Ex. N.) Yet Plaintiff has not shown that Zane did not receive a written warning in the same manner that Plaintiff did. Thus, there is no other evidence connecting the Defendants’ decision to discipline Plaintiff with her protected activity. The Court finds that Plaintiff has not met her burden to show that Defendants’ explanation is pretextual.
As for LaRose’s comments appended to Plaintiffs August 30, 2010 evaluation, although Defendants have not proffered a nondiscriminatory reason for the comments, the record establishes that the comments were all based on actual infractions committed by Plaintiff on September 4, 2009. The fact that two out of three of LaRose’s comments merely restate discipline that had already been imposed on Plaintiff in some form prior to September 11, 2009, also weighs against a finding of retaliatory animus. See Porter v. Potter,
Nor does Plaintiff’s contention that no other lieutenant was “singled out” for excessive criticism over such minor, technical infractions, raise an inference of pretext. Plaintiff’s allegations are largely concluso-ry and based on Plaintiffs testimony alone, but Plaintiff has not established that she has any personal knowledge of the discipline that was or was not received by other lieutenants. Without any other evidence in the record, there is nothing to suggest that retaliation was the but-for cause of LaRose’s negative comments about Plaintiff. See Adamczyk v. New York Dep’t of Corr. Servs.,
As to the imposition of the uniform requirement, this action by Defendants, standing alone, cannot be considered adverse, and in the absence of evidence that, but for her complaint of September 11, 2009, Defendants would not have imposed the other discipline that they did, Plaintiff cannot establish that Defendants’ reason for imposing the uniform requirement was pretextual.
Because Plaintiff cannot show that retaliatory animus was the but-for cause of Defendants’ actions subsequent to Plaintiff’s September 11, 2009 EEO complaint, the Court grants Defendants’ motion for summary judgment and dismisses Plaintiff’s claims of retaliation under Title VII, the NYSHRL and § 1981.
G. Hostile work environment— Title VII, the NYSHRL, § 1981 and § 1983
Plaintiff has failed to establish a hostile work environment claim under Title VII, the NYSHRL, § 1981 and § 1983. In order to establish a hostile work environment claim, a plaintiff must produce evidence “that the complained of conduct (1) is objectively severe or pervasive — that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiffs” protected characteristic. Robinson v. Harvard Prot. Servs.,
Plaintiff presents two theories of a hostile work environment based on Plaintiffs race and gender: (1) sexual harassment by Sammarco and (2) the creation of a “demeaning” hostile workplace environment based on harassment. (Oral Arg. Tr. 79:24-80:1.)
i. Sexual harassment claim&emdash;Title VII, the NYSHRL and § 1983
Plaintiff's sexual harassment claim is based on the actions of Sammarco, who, (1) issued the "window directive" in 2006 which, according to Plaintiff, left her, the only female lieutenant, without the same level of privacy as other male lieutenants and permitted Sammarco to look into her office, (2) renewed this directive in 2010, and then threatened to charge Plaintiff with insubordination when she failed to comply with the directive, (3) followed Plaintiff in a menacing manner, staring and leering at her, and passing by her office as much as 20 times per day, in 2006, and (4) in December 2010 followed her into the garage one afternoon and "glar[ed]" at her while she drove out of the garage.
Similarly, Sammarco telling Plaintiffs supervisor that he would charge Plaintiff with insubordination if she continued to refuse to remove the window covering on her office door, even in light of Sammarco’s past actions with regard to the “window directive,” are not so severe as to alter Plaintiffs conditions of employment. An isolated threat of discipline that
In addition, to the extent that Plaintiff argues that Sammarco created an uncomfortable working environment for other African-American women, (see PI. Dep. 232:5-234:14), Plaintiff has not presented sworn statements or other admissible evidence of other people’s experiences, but instead relies on her own hearsay statements about the experiences of others, which are inadmissible at the summary judgment stage. See DiStiso v. Cook,
Finally, in considering the “totality of circumstances” related to Plaintiffs allegations of sexual harassment, Sammarco’s act of following Plaintiff into the garage on one occasion, even when combined with his threat to discipline her for not removing the covering from her window, does not rise to the level of effectively altering the conditions of Plaintiffs work environment.
In sum, Sammarco’s actions fall on the dismissal side of the “line between complaints that are easily susceptible to dismissal as a matter of law,” as they do not amount to the creation of an objectively hostile and abusive work environment on the basis of Plaintiffs gender. See Redd,
ii. Creation of demeaning workplace claim
Plaintiff argues that being assigned to the undesirable Kendra’s Unit and the title of Administrative Lieutenant, and being denied a transfer to a location near her home in June 2009, and being subject to a barrage of disciplinary actions and excessive scrutiny subsequent to the September 4, 2009 meeting, comprise a hostile work environment that undermined
Plaintiff argues that her assignment to Kendra’s Unit was an undesirable and demeaning assignment for her. A hostile work environment can be created through the inappropriately menial assignments that invoke outdated stereotypes of gendered work. See, e.g., Rodriguez v. City of New York,
The actions beginning in September 2009 that Plaintiff describes as creating a hostile work environment include: (1) being asked to fill in for an injured sergeant, and later being made to fill in for a sergeant in the field on a few occasions, (2) being the subject of “unfair” notes that misrepresented her actions at the September 4, 2009 meeting, (3) being singled out for reprimands for wearing jewelry, and (4) receiving verbal and written reprimands for raising her age in protest to the request that she participate in field duty. Assuming that Plaintiff can establish that these actions were based on her race and/or gender, these actions nevertheless were not so “severe” or “pervasive” that they altered the conditions of Plaintiffs employment.
Plaintiff received verbal and written counseling regarding her wearing of jewelry and her statements at the September 4, 2009 meeting about her age for approximately one month, a short period of time, with the addition of one set of negative evaluation comments that occurred one
Likewise, Defendants’ enforcement of its uniform policies amounted to the taking away of a convenience “enjoyed” by all the Sheriffs Office personnel, but was still within Defendants’ purview.
H. First Amendment retaliation
Plaintiff claims that Defendants retaliated against her in violation of her First Amendment rights. Plaintiff argues that she engaged in First Amendment-protected activity because she is an active member of the Board of the union that published a “whistle-blowing” photograph highlighting the wrongdoing of a First Deputy in the Sheriffs Office. (Pl. Opp’n Mem. 17.) In retaliation for this photograph being published, which was published several weeks after the September 4, 2009 meeting, Defendants “began to scrutinize Plaintiff very strictly, as she received numerous counseling memorandums, while her supervisor, Undersheriff Doyle, was constantly questioned by Defendants about Plaintiffs activities.” (Pl. Suppl. Brief 2; Pl. Dep. 212:13-18.)
“To state a First Amendment retaliation claim, a plaintiff must establish that: (1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech.” Puglisi v. Town of Hemp-
In the context of unions, “[t]here is no doubt that retaliation against public employees solely for their union activities violates the First Amendment.” Buckley v. New York,
Plaintiff alleges that she engaged in constitutionally protected activity by being active on the board of a union, which published a photograph of First Deputy Pu-Folkes attired in inappropriate uniform at the September 2009 United Nations detail.
Plaintiffs claim is that, as a result of her protected First Amendment activity, she suffered a series of memoranda from La-Rose to her supervisor, Doyle, inquiring about what Plaintiff was doing, how long it took for her to do it, and asking “why wasn’t she a part of’ other activities. (PI. Dep. 214:7-20.) There is no evidence that any of these requests were directed to Plaintiff, or that she was reprimanded or otherwise affected by these memoranda. The memoranda to Plaintiffs supervisor are not sufficient to meet the standard for “adverse employment action” for purposes of a First Amendment claim. Plaintiffs First Amendment retaliation claim is dismissed.
I. NYCHRL claims
Plaintiff brings claims of discrimination, retaliation and hostile work environment pursuant to the NYCHRL. “District courts may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.” Pension Ben. Guar. Corp. v. Morgan Stanley Inv. Mgmt. Inc.,
III. Conclusion
For the foregoing reasons, the Court grants Defendants’ motion for summary judgment as to all of Plaintiffs claims under federal and state law, and declines to exercise jurisdiction over Plaintiffs claims under the NYCHRL. The Court dismisses Plaintiffs claims under the NYCHRL without prejudice. The Clerk of the Court is directed to close the case.
SO ORDERED.
Notes
. Plaintiff withdrew her claims for failure to promote, failure to receive discretionary pay, and her claims pursuant to the Lily Ledbetter Fair Pay Act, 42 U.S.C.A. § 2000e-5(e)(3). (PI. Opp'n 5.)
. Based on the record, the Court understands the hierarchy of the Sheriff’s Office, from highest- to lowest-ranked, to be: Sheriff; First Deputy; Undersheriff, also known as Chief; Lieutenant; and Sergeant.
.The parties disagree as to how onerous the duties of contract manager were. According to Defendants, the position involved attending two to three meetings a year, where Plaintiff's “only responsibility was to be present and listen.” (Defs. 56.1 ¶¶ 26-27.) According to Plaintiff, the position was "problematic and objectionable,” and while Plaintiff did not say how much work she had to do to prepare for the long meetings, she stated that "they didn’t
. The parties refer to this as working in "DE-CAS,” although this term is not defined in the record.
. Sammarco left 30-10 Starr Avenue approximately eight months to one year after he began in April or May 2006. (Def. 56.1 ¶ 61; PL 56.1 ¶ 61.) Sammarco testified that he worked at 30-10 Starr Avenue for a period of "six, eight months” from when he began in April or May 2006, (Sammarco Dep. 68:13-19), and Plaintiff testified that Sammarco was there for approximately one year, (PL 225:12-17).
. According to Defendants’ records, another lieutenant present at that meeting appears to have also made comments indicating that Plaintiff should not be required to fill in for a sergeant. (See Def. Ex. N ("Memorandum to Undersheriff Doyle dated Sept. 30, 2009" (counseling memorandum from First Deputy Pu-Folkes to Undersheriff Doyle documenting that, during the September 4, 2009 meeting, two of Doyle’s subordinates, Plaintiff and Lieutenant Zane, had expressed a "strong view that safety concerns justify making field assignments based on age as a qualifier,” and that Doyle had missed an opportunity to enforce the EEO policies and procedures of the Sheriff's Office by not correcting these misstatements)).)
. Approximately a month later, on October 20, 2009, LaRose sent an email to the Under-sheriffs requiring all lieutenants to perform 1.5 hours of field work per week, "as was
. For example, Plaintiff testified that Sergeant Narvez was in the habit of wearing a heavy gold bracelet, and "I think one time I heard for him to take it off, but then, you know, I saw it with him afterwards,” and testified about "various men who had pierced ears or a pierced ear and they were just told to just remove the earring.” (PI. Dep. 109:14-110:3.)
. Plaintiff received a right-to-sue letter on September 22, 2010, and subsequently brought the instant action. (See Compl. Ex. A.)
. The parties do not address what, if anything, resulted from this EEO complaint.
. Although Plaintiff cited the United Nations Security Council detail from September 2009, (Def. 56.1 ¶ 173), claiming that lieutenants junior to her received overtime assignments, and stating that she "would have done it,” she did not dispute that an email was sent to all sheriffs informing them about the overtime opportunity, instead stating “It might not have been the UN detail that I wasn’t notified about.” (Pl. Dep. 202:17-203:24.)
. Plaintiff contends that "some people were getting overtime. It was just not I.” (PI. Dep. 208:8-9.) When asked who was getting overtime, Plaintiff responded: “There were other lieutenants — I can’t pinpoint to tell you off the top of [my] head now what lieutenants were working when. I’m sure they have a record of who was getting overtime.’’
. In addition, because Plaintiff’s claims that accrued in 2010 are "reasonably related” to the claims that were the subject of her January 7, 2010 EEOC charge, Plaintiff can pursue those claims. See Tanvir v. N.Y.C. Health & Hospitals Corp.,
Plaintiff’s allegations regarding the "garage incident” with Sammarco can be said to be "reasonably related” to Plaintiff’s claim in the January 2010 EEOC charge that she was “subject to stalking.” Although short and conclusoiy, this claim in Plaintiff's 2010 EEOC charge is sufficient to have permitted the EEOC to investigate and to have put Defendants on notice of Sammarco's allegedly sexually harassing conduct in 2010. Plaintiff's remaining claims that arose in 2010— that she was targeted for discipline in connection with having her window covered in 2010, that her supervisor was reprimanded for permitting her to change her shift, and that in August 2010 she received negative comments appended to her evaluation — are arguably
. At oral argument counsel for Plaintiff referred to Plaintiff's claims as a hostile work environment claim based on the creation of a workplace environment, and a sexual harassment claim. (Oral Arg. Tr. 70:15-21, 79:24-80:2.)
. To the extent that both parties at times referenced incidents that took place prior to 2009 as "menial” or "demeaning,” the Court will assume that Plaintiffs demeaning hostile work environment claim includes actions by Defendants that took place prior to 2009. Under the continuing violation theory, these actions may be considered as part of one continuing policy of creating a hostile work environment for Plaintiff. However, as supra, claims that were the subject of Plaintiff’s 2006 EEOC charge are barred from consideration except as background.
. Although the continuing violation exception to the limitations period is also recognized in the context of NYCHRL and NYSHRL claims, see Bermudez v. City of New York,
. Although the continuing violation exception to the limitations period is also recognized in the context of § 1983 claims, see Plumey v. New York State,
.The Court is mindful that these claims involve four different limitations periods, namely, March 13, 2009 for claims brought under Title VII, December 22, 2007 for claims brought under § 1983, February 6, 2007 for claims brought under the NYSHRL, and December 22, 2006 for claims brought under § 1981. The Court will only consider conduct as of the specified date for each claim.
. The burden of proof and production for employment discrimination claims under Title VII, § 1981, § 1983 and the NYSHRL are identical. Garcia v. Hartford Police Dep’t,
. Plaintiff suggests that Defendants' actions should be considered in the aggregate rather than in isolation, arguing that “[a]lthough Plaintiff suffered no adverse employment action, such as a termination or demotion, Plaintiff suffered multiple adverse employment actions at different times at the Sheriff’s Office.” (PL Mem. 8). It is not clear whether state and federal antidiscrimination laws permit the Court to aggregate individual discrete acts to attempt to satisfy the "adverse employment action” prong of Plaintiff's prima facie case. Several district courts have rejected this approach. See Kaur v. N.Y.C. Health & Hospitals Corp.,
However, the Second Circuit has suggested that such an argument is cognizable under Title VII. See Cunningham v. N.Y.S. Dep’t of Labor,
. Because the first two events occurred prior to March 13, 2009, they are time-barred under Title VII. However the Court considers these actions as part of Plaintiff's NYSHRL, § 1983 and § 1981 claims.
. Plaintiff contends that "[s]ometimes you would get [the opportunity to request a transfer] but mostly it's just implied that you would want to work in the borough closest to your residence.” (Pl. Dep. 81:23-25.)
. Although Plaintiff asserts a retaliation claim under § 1983, (Oral Arg. Tr. 2:19-24), it is not clear that such claims are cognizable in the Second Circuit. See Bernheim v. Litt,
. The Court is mindful that these claims involve three different limitations periods, namely, March 13, 2009 for claims brought under Title VII, February 6, 2007 for claims brought under the NYSHRL, and December 22, 2006 for claims brought under § 1981. The Court will only consider conduct as of the specified date for each claim.
. It is unclear whether the Supreme Court decision in Nassar, which changed the standard for establishing causation in a retaliation claim from showing that retaliation was a “motivating factor,” to showing that it is a “but-for” cause of the adverse employment action, applies to retaliation claims brought pursuant to the NYSHRL. New York State courts have yet to directly address the impact of the Supreme Court’s recent holding in Nas-sar on the NYSHRL, nor has the Second Circuit had the opportunity to address this issue. See Giudice v. Red Robin Int’l, Inc.,
Traditionally, "[t]he standards for evaluating ... retaliation claims are identical under Title VII and the NYSHRL.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C.,
. Plaintiff does not allege that Defendants retaliated against her for filing the December 2010 EEO complaint.
. Although Plaintiff cannot sue for discrimination based on the conduct comprising the substance of these complaints, as she is barred by the statute of limitations and her failure to file a lawsuit within 90 days of receiving a right-to-sue letter, for purposes of her Title VII retaliation claim, the statute of limitations begins to run from the time of Defendants' allegedly retaliatory activity and not from the time of the Plaintiff's protected activity, the filing of these complaints. See Nat'l R.R. Passenger Corp. v. Morgan,
. Although this action is time-barred as to all of Plaintiff's claims, the Court considers it only for context regarding the retaliatory nature of Defendant's subsequent actions.
. The Court considers this evaluation only with respect to Plaintiffs NYSHRL and § 1981 claims.
. These actions include: The September 8, 2009 conversation her supervisor had with Plaintiff regarding her statements about her age, the September 10, 2009 email from La-Rose to Plaintiff's supervisor, Doyle, asking Doyle to be sure to include Plaintiff’s jewelry infraction in a quarterly report, and a September 4, 2009 conversation between Doyle and Plaintiff regarding her jewelry infraction.
. Although Plaintiff claims that there were "a couple of weeks” when she was required to be in uniform before the directive was issued for the members of her unit to be in uniform at all times, she complained to the EEO on September 11, 2009, about being targeted for discipline after refusing to fill in for a sergeant, and the email requiring all members of Kendra's Unit to be in uniform at all times was sent on September 18, 2009. Unless the directive to Plaintiff preceded her September 11, 2009 EEO complaint, there was, at most, one week when Plaintiff alone was required to be in uniform at all times.
. The same standards apply to a plaintiff's hostile environment claim arising under the NYSHRL, § 1981 and § 1983. See Rivera v. Rochester Genesee Reg’l Transp. Auth.,
. Section 1981 only prohibits discrimination on the basis of race, ancestry or ethnicity. See Runyon v. McCrary,
. The Court considers this hostile work environment claim under Title VII, NYSHRL, § 1981 and § 1983. See Whidbee,
. Plaintiff testified that they were required to be in uniform anytime they were in the field, and if they received an urgent call to dispatch into the field, they would take approximately five minutes to get changed before leaving the office. (Pl. Dep. 133:22-25.)
. Plaintiff testified that the union published the photograph in late September or early October. (Pi. Dep. 210:18-25.) The United Nations detail where the photograph was taken took place the week of September 21, 2009. (PL Ex. X, Memorandum dated September 17, 2009 from Office of the City Sheriff.)