OPINION & ORDER
Thе motions catalogued below are all brought by the Defendants and all seek summary judgment. Plaintiffs Genette Colon and Elvimar Rivas bring racial and pregnancy discrimination claims, as well as retaliation claims, against their former employer, the Fashion Institute of Technology (“FIT”). Colon brings claims for interference and retaliation in violation of the Family Medical Leave Act (“FMLA”), and discriminatory treatment and retaliation under 42 U.S.C. § 1981. Colon also brings claims against Defendants Laura Solomon, Linda Muglia, and Carmela Speranza for retaliation under 42 U.S.C. § 1981. Rivas brings claims for discrimination on the basis of pregnancy, discriminatory discharge and hostile work environment under the New York City Human Rights Law (“NYCHRL”). Rivas also brings a claim for hostile work environment under 42 U.S.C. § 1981, and claims against Defendants Colette Wong and Carmela Speranza under the NYCHRL and 42 U.S.C. § 1981. For the reasons stated below, Defendants’ motion is GRANTED in part and DENIED in part.
BACKGROUND
A. Plaintiff Genette Colon
Plaintiff Genette Colon is a Hispanic woman. She was hired by Defendant FIT as a student aide in 1997 to work in the fabric lab in the Fashion Design Department. (Defs.’ 56.1 ¶ 1.) In 1999, Colon was promoted to a position as a part-time employee in the fabric room. (Id. at ¶¶ 2, 3.) In 2002, Colon was promoted to a full time position, and in 2005, she was granted tenure at FIT. (Id. at ¶¶ 4, 5.) Colon alleges that on one occasion in 2008 Defendant Linda Muglia (“Muglia”), the Supervisor of FIT’s Fabric/Finding Room, refеrred to her as a “spie” while she criticized her work. (Defs.’ 56.1 ¶ 38; Colon Dep. 127-28.) Colon complained to her union representative Maria Zervos about the comment. (Defs.’ 56.1 ¶ 39; Colon Dep. 165.)
On August 18, 2008, August 22, 2008, September 9, 2008, December 1, 2009, March 4, 2010 and May 16, 2011 Colon received memoranda from Defendant Colette Wong (‘Wong”), Chair of the Fashion Design Department, addressing Colon’s unacceptable tardiness, absences and misuse of sick days. (Pogrebin Dec. Exs. F, G, H, I, J, K.) During May 2011, Colon was denied a request for three vacation days, though she was granted the other
On August 22, 2011, Wong sent an email to members of the FIT Human Resources Dеpartment (“HR”) requesting that charges be brought against Colon and another employee, Angelo Totenda (“Totenda”). (Wong Dec. ¶ 5, Ex. A; Defs.’ 56.1 ¶ 53, 54, 55.) Defendant Solomon (“Solomon”), the Assistant Vice President for Human Resources and Labor Relations at FIT, testified that she began processing this request on August 25. (Solomon Dec. ¶ 4.) During October 2011, Colon tore the ACL in her left knee. (Colon. Aff. ¶¶ 39, 40, Ex. 12.) Colon received two notes from a chiropractor about her condition, dated October 18 and October 20, both of which she gave to her supervisors. (Id.) Also during October, and after receiving these notes, Muglia took away Colon’s keys, which made it more difficult for Colon to use the restroom. (Cоlon Aff. ¶ 42.) On another occasion, Muglia insisted Colon look for a mannequin for a student, despite her knee injury. (Id.) Colon informed her union representative of this treatment. (Id. at ¶ 43.)
On November 1, 2011, Colon picked up paperwork from HR to apply for FMLA leave for her knee surgery. (Id. at ¶ 44.) At some point between that date and November 7, Colon informed Johanny Taveras, an HR employee, about Muglia’s taking the restroom keys and her insistence that she get the mannequin. (Id.) On November 3, 2011, Colon’s surgeon faxed the required FLMA leave forms to FIT, indicating that Colon would need leave for surgery and recovery from November 30, 2011 to January 10, 2012. (Colon Aff. Ex. 13.) On November 7, 2011, FIT preferred disciplinary charges against Colon and suspended her employment. (Sоlomon Dec. ¶ 5; Colon Aff. Ex. 16.) On November 8, 2011, Colon complained of discrimination to Griselda Gonzalez, FIT’s affirmative action officer, stating that she had been discriminated against because she had requested FMLA leave. (Defs.’ 56.1 ¶49; Gonzalez Dec. ¶3.) Gonzalez found that Colon’s complaint was unsupported. (Gonzalez Dec. ¶ 4.) After Gonzalez informed Colon of her findings, Colon complained to Gonzalez that she had been treated poorly because of her race. (Id. at ¶ 5.)
Pursuant to the collective bargaining agreement between Colon’s union, the United College Employees of FIT, Local 3457 (“Union”) and FIT, Colon’s disciplinary charges as a tenured employеe were referred to a Disciplinary Committee made up of one designee of the FIT administration and one designee from the Union to investigate the charges and make a recommendation to the President of FIT. (Solomon Dec. ¶ 5.) This committee recommended Colon’s termination. (Id.) On February 1, 2012, Colon was suspended without pay pending a disciplinary hearing, pursuant to the collective bargaining agreement. (Id.) An arbitrator conducted disciplinary hearings on September 5, November 14 and December 11, 2012, and subsequently recommended Colon’s termination, finding 139 instances of lateness and 63 absences in almost five years. (Id. at ¶¶ 7, 8; Pogrebin Dec. Ex. P 11.) During the disciplinаry hearings, Colon was represented by counsel, witnesses testified under oath and were cross examined, but Colon complained that she was not able to call certain co-workers to testify. (Defs.’ 56.1 ¶ 25; Pis.’ 56.1 ¶25’; Colon Aff. Ex. 15). On June 5, 2013, the FIT Board of Trustees adopted the arbitrator’s recommendation and terminated Colon. (Solomon Dec. ¶ 8.)
B. Plaintiff Elvimar Rivas
Plaintiff Elvimar Rivas is a Hispanic woman. In 2007, Defendant FIT hired her as a temporary secretary in the Fashion Design Department. (Defs.’ 56.1 ¶ 56).
During her time at FIT, Rivas felt that she was criticized for making phone calls and sending text messages during the day. (Defs.’ 56.1 ¶ 70.) Rivas also had her pay docked when she was a few minutes late to work, was required to call Speranza, an Administrative Associate in the Fashion Design Department who supervised Colon, to report her arrival time each day for two months in 2009, and had to move her desk to directly face Speranza. (Defs.’ 56.1 ¶¶ 79, 82, 83). In January 2010, Solomon, an HR Vice President, wrote an email advising Speranza to terminate Rivas because of her tardiness. (Defs.’ 56.1 ¶ 85; Solomon Dec. ¶ 9.) In March 2010, Solomon sent emails to another member of HR, and to Speranza and Wong, “recommending [Rivаs’s] termination on the basis of lateness.” (Defs.’56.1 ¶¶ 86, 87; Solomon Dec. ¶¶ 10,11.)
Rivas informed Wong in writing that she was pregnant on May 4, 2010. (Pls.’ 56.1 ¶¶ 89, 164; Rivas Aff. ¶¶ 18, 20, Ex. 3.) Rivas states that she verbally informed Wong of her pregnancy approximately one week before the written notification, and complained that Wong asked whether her boyfriend would be able to take care of her during her pregnancy, and did not congratulate her. (Pls.’ 56.1 ¶ 89; Rivas Aff. ¶ 17; Defs.’ 56.1 ¶ 92.) Wong emailed an HR employee on May 14 informing him that she planned to terminate Rivas’s employment the week of May 24; however, upon consultation with HR, Wong was advised to postpone the termination. (Defs.’ 56.1 ¶ 88, 89.) Rivas also alleges that, after she informed Wong of hеr pregnancy, Speranza and Wong ignored her, did not include her in meetings, no longer kept her “in the loop”, and were no “longer ... able to look [her] in the face.” (Defs.’ 56.1 ¶¶ 95, 96; Pls.’ 56.1 ¶ 172.)
On May 27, 2010, Rivas received a performance evaluation, indicating that her performance was unacceptable in the areas of “Quality,” “Quantity,” “Judgment,” and “Attendance and Punctuality.” (Defs.’ 56.1 ¶ 93; Pogrebin Dec. Ex. BB). Rivas informed Wong that she did not feel that the May 27 evaluation was accurate, and Wong revised the evaluation on June 14, wherein only “Attendance and Punctuality” remained at the not acceptable level, with several other categories showing “needs improvemеnt.” (Pls.’ 56.1 ¶¶ 172, 173; Defs.’ 56.1 ¶ 94; Rivas Aff. ¶ 24, Exs. 8, 9.)On September 2, 2010, Rivas’s employment was terminated. (Defs.’ 56.1 ¶ 101; Pls.’ 56.1 ¶ 174.)
DISCUSSION
Summary judgment is appropriate “only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Kuebel v. Black & Decker Inc.,
A. Plaintiff Genette Colon
1. Collateral Estoppel and Weight Given to Arbitration Decision a. Collateral Estoppel
“The doctrine of collateral estoppel bars relitigation of a legal or factual
Courts in this circuit have not held that Section 2587 arbitrations have preclusive effect, nor have they held that litigation is precluded because of arbitrations based on similar statutes.
b. Weight Given to Arbitration Decision
“‘The arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate.’ ” Pender v. Disk Council 37 of Am. Fed’n of State, Cnty. & Mun. Employees,
2. FMLA Interference and Retaliation
“The FMLA affords eligible employees an ‘entitlement’ to twelve weeks of unpaid leave per year.” Di Giovanna v. Beth Israel Med. Ctr.,
a. FMLA Interference
To establish a prima facie case for interference under the FMLA, a plaintiff must establish: “(1) that she is an eligible employee under the FMLA; (2) that defendants constitute an employer under the FMLA; (3) that she was entitled to leave under the FMLA; (4) that she gave notice to defendants of her intention to take leave; and (5) that defendants denied her benefits to which she was entitled by the FMLA.” Esser v. Rainbow Adver. Sales Corp.,
The first three elements are undisputed; however, the parties disagree as to the fourth, and in particular with the time sequence surrounding Defendants’ decision to suspend Colon. Defendant Wong emailed FIT Human Resources to bring charges against Colon and Totenda on August 22, 2011. It was not until October, that Colon suffered the kneе injury, about which she informed Wong and Muglia later that month. She did so both verbally and with two October notes from her chiropractor. On November 3, her surgeon sent the required forms to FIT for leave from November 30, 2011 to January 10, 2012. On November 7, Colon was informed that she was being suspended and that charges had been brought against her.
Defendants argue that the decision to terminate Colon was made on August 22, when Wong emailed HR. However, Plaintiffs observe that Totenda, the other employee against whom Wong pressed charges for the same kind of concerns in that email, was not terminated, and that the August 22 email only called for charges, and not for any specific disciрlinary outcome. The gap between August and November is unaccounted for, and while “[a]n employer is not liable for ‘interfering’ with an employee’s leave when the employee would have been terminated regardless of the leave.” See Pearson v. Unification Theological Seminary, 785
b. FMLA Retaliation
Unlike the interference claim, an FMLA retaliation claim is analyzed under the McDonnell Douglas burdеn shifting framework, requiring the Plaintiff first to establish a prima facie case. See Potenza,
Although the first two elements are undisputed, the parties do not agree about which actions may be considered adverse employment actions. Colon complains of Muglia taking away her keys and asking her to find a mannequin for a student, but these actions do not rise to the level of adverse employment actions. See Love-joy-Wilson v. NOCO Motor Fuel, Inc.,
With respect to the fourth element, Defendants argue that Colon has not demonstrated retaliatory intent. However, as discussed above with regard to the FMLA interference claim, the facts may give rise to an inference of retaliatory intent because of the timing of Colon’s notice to Defendants of her intention to take FMLA leave, followed very shortly by her suspension. “Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.” Manoharan v. Columbia Univ. Coll, of Physicians & Surgeons,
3. § 1981 Discriminatory Treatment and Retaliation a. § 1981 Discriminatory and Disparate Treatment
I turn next to Colon’s claims for discriminatory and disparate treatment under § 1981. As with Colon’s FMLA retaliation claim, the burden-shifting framework of McDonnell Douglas Corp. v. Green,
To establish the prima facie case, Colon must establish “(1) membership in a protected class; (2) satisfactory job performance; (3) an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination.” Rodriguez v. City of New York, 644 F.Supp.2d 168, 183 (E.D.N.Y.2008), (citing Cruz v. Coach Stores, Inc.,
Here, Plaintiff has met her burden with respect to the first element. Despite Defendants’ dissatisfaction, Plaintiff worked for FIT for nine years in this position. Although attendance and lateness were identified as problem areas in her reviews, she meets the minimum requirements to show her qualifications at this stage. However, Colon fails to satisfy each of the remaining elements. The only remaining potential adverse actions are Muglia’s taking her bathroom keys, Muglia’s insistence that she get a mannequin on one occasion, and Muglia’s and Wong’s “talking] down” to her. None of these actions qualify as adverse employment actions, which must be “more than trivial, insubstantial, or petty,” Williams v. Regus Mgmt. Grp., LLC,
Colon also fails to establish that the circumstances of her employment give rise to an inference of discrimination. Al
Because Colon has not established an adverse employment action or circumstances that would give rise to an inference of discrimination, she cannot meet the requirements for a prima facie case of discriminatory or disparate treatment under § 1981. Accordingly, Defendants motion for summary judgment is granted with respeсt to those claims.
b. § 1981 Retaliation
Colon’s retaliation claims “are evaluated under a three-step burden-shifting analysis: (1) [plaintiff] must establish a prima facie case of retaliation; (2) defendants must then articulate a non-retaliatory reason for the adverse action; and (3) [plaintiff] must show that retaliation was a substantial reason for the complained-of action.” Benn v. City of N.Y.,
Colon fails at the threshold stage because she is unable to show that an adverse employment action was taken in response to protected activity. Colon’s protected activity is her November 8 complaint to HR. However, this complaint was made after charges were issued on November 7. Following the charges, FIT went through the procedure set out in the Collective Bargaining Agreement. (Defs.’ 56.1 ¶¶ 18,19, 22.) Colon’s complaint after this point cannot plausibly suggest retaliation because the formal disciplinary process had already commenced before her complaint was made. See Slattery,
Because Colon has failed to demonstrate that any adverse actions were taken in response to her protected activity, she cannot establish a prima facie case of retaliation under § 1981. Accordingly, summary judgment must be granted for Defendants on those claims.
B. Plaintiff Elvimar Rivas
1. NYCHRL Pregnancy Discrimination and Discharge
Rivas’s claim for pregnancy discrimination under the New York City Human Rights Law is analyzed under the McDonnell Douglas burden-shifting framework.
If Rivas establishes a prima facie case of pregnancy discrimination, the burden shifts to Defendants to articulate a legitimate, non-discriminatory reason for Rivas’s discharge. Id. at 278. Plaintiff must then show that the real reason for her termination was her pregnancy. Malena,
In its recent decision in Mihalik, the Second Circuit held that “courts must analyze NYCHRL claims separately and independently from any federal and state law claims ... construing the NYCHRL’s provisions ‘broadly in favor of discrimination plaintiffs, to the extent that such a сonstruction is reasonably possible.’ ” 715
The first three elements of the prima facie case are undisputed. Rivas asserts that the circumstances surrounding her discharge give rise to an inference of unlawful discrimination because her employment was terminated shortly after she informed FIT of her pregnancy. See Forde v. Beth Israel Med. Ctr.,
Rivas argues that these reasons were pretext for her termination because of the close tеmporal proximity between informing FIT of her pregnancy and her termination. Rivas, a nontenured FIT employee, informed Wong of her pregnancy in writing on May 4, 2010, and had given verbal notice to Wong about a week before. On May 14, Wong informed HR that she planned to terminate Rivas the week of May 24. (Wong Dec. Ex. B). Although the timing of Rivas’s termination alone may be insufficient to demonstrate pretext, see Forde,
Further and notwithstanding that the decision to terminate Rivas’s employment was made well before her pregnancy, a jury could find that knowledge of Rivas’s pregnancy was a “motivating factor” in Defendant’s termination decision because of the temporal proximity between notice and termination, and the negative change in her performance evaluations following notice that she was pregnant. See Lambert v. McCann Erickson,
2. § 1981 and NYCHRL Hostile Work Environment
To prevail on a § 1981 hostile work environment claim, Rivas must demonstrate “(1) that she was subjected to
Claims under the NYCHRL, on the other hand, do not use the “severe and pervasive” standard, instead requiring the plaintiff to show only that she was treated “less well” because of discriminatory intent. Mihalik,
Rivas alleges that she was subject to intense scrutiny and micro-management on a daily basis, including having her desk moved to face Speranza. (Pls.’ 56.1 ¶¶ 179-80). Further, she was required to call Speranza when she arrived at work each day. (Id. at ¶ 182). Speranza also reprimanded Rivas for using her cell phone to place calls or texts, while Rivas observed Speranza, and another employee, Nina Blumenthal, both of whom are white, use their cell phones to make calls and texts. (Id. at ¶¶ 177-78). Finally, Rivas was docked time for arriving to work late. (Defs.’ 56.1 ¶¶ 79, 82, 83.)
However, these actions are not sufficient to sustain a hostile work environment claim under § 1981 or the NYCHRL. Morеover, Rivas does not dispute that she has arrived late to work, and her performance evaluations demonstrate that she struggled with this aspect of her employment from the get go. (Def. 56.1 ¶¶ 60, 71; Rivas Aff. Exs. 6-7, 10-11). Thus, it is hard to conclude that the actions Rivas complains of amount to unfair scrutiny by Speranza, rather than a consequence of Rivas’s work and attendance problems that needed improvement. See Leung v. N.Y. Univ., No. 08CV5150 (GBD),
Speranza may have been an “overbearing or obnoxious boss,” but even under the more lenient NYCHRL standard, these actions do not rise above the level of “petty slights and trivial inconveniences.” Mihalik,
CONCLUSION
I have considered the parties remaining arguments and find them meritless.
SO ORDERED.
Notes
. Kaitlin Wood, a third-year law student at Fordham Law School and a Fall 2013 intern in my Chambers, provided substantial assistance in researching and drafting this opinion.
. As Defendants point out, I have held that labor arbitrations collaterally estop certain claims; however, when I have done so, the relevant claims were, unlike the claims here, state law claims that state courts had held were precluded by labor arbitrations. See Webb v. Robert Lewis Rosen Assocs.,
. As a result, I need not decide whether Colon’s FMLA and § 1981 claims were actually litigated in the arbitration.
. Plaintiffs suggest the Court discard the McDonnell Douglas framework in light of the Second Circuit’s recent decision in Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,
. Neither side adequately briefed the issue of liability with respect to those defendants sued in their individual capacities. It would be helpful to have your thoughts on this score, if any, before trial.