MEMORANDUM DECISION AND ORDER
Plaintiff brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and corresponding provisions of state and local law, asserting that she was denied a promotion, training opportunities, and received disparate pay based on the fact that she is African-American. She has also asserted a claim for retaliation based on her unsuccessful complaints about the discrimination that she alleges. Defendants have moved for summary judgment.
According to plaintiff, she has been complaining (orally) about racial discrimination for over 20 years, but has never taken any action on her complaints until she filed her EEOC claim late in 2010. There is a danger in such situations that the salutary purpose served by the antidiscrimination laws will be diluted if applied too broadly. Most employees of public and large private employers reach a plateau in their career with the institution at some level, some sooner and some later, where either for reasons of ability, personality, any of the other characteristics that employers must evaluate, or an employee’s bad luck, they can progress no further. That a particular employee has a record of complaining about discrimination cannot elevate that employee’s work aspirations above those of employees without such a record. The employer still needs to have a free hand in evaluating employees who have engaged in protected activity on the same basis as employees who have not, lest the genuine
It is indeed somewhat remarkable that plaintiff would assert discrimination and retaliation claims against a backdrop of over 20 years of complaints about discrimination by cherry-picking personnel decisions that favor Asians or whites, while ignoring those that show progression by other African-Americans. At ¡most, she has established that her supervisors failed to treat her with the respect and recognition that she feels she deserves. Her personal belief that she has been the subject of discrimination and retaliation is not enough. The law does and must distinguish between those employees who believe they have been victims of discrimination and retaliation, and those who can demonstrate by direct or circumstantial evidence that they may well have been such victims. Plaintiff has adduced far too little circumstantial evidence to permit a jury to reasonably find in her favor, and defendants’ motion is therefore granted.
BACKGROUND
Plaintiff is an African-American, currently employed as a Computer Specialist (“CS”), Level 1 (“CS1”), in the New York City Fire Department’s Bureau of Technology Development and Systems (“Systems”). Systems is responsible for the technical support for all of the Fire Department’s computer-related equipment and radio systems.
Plaintiff has a Bachelor’s degree in Business Administration with a concentration in computer science and a Master’s Degree in Project Management from the Keller Graduate School of Management in 2011. She started working for the Fire Department in 1987 as a temporary “Computer Associate,” having been placed there by a temporary employment agency, apparently on a week-to-week or other temporary basis. Her status was upgraded and she was formally hired by the Fire Department as a “provisional” Computer Associate in 1988 at an annual salary of $47,002. At the time she was hired, her duties included maintaining and writing computer programs in a computer-language called “COBOL.” Subsequent to beginning work at the Fire Department, plaintiff passed a civil service exam and as a result, her position was upgraded in late 1989 to CS-1. Plaintiff received regular contractual pay raises of two to three percent of her salary, so that her current annual salary is $79,609. She has not received any discretionary bonuses, which have been author
In 1996, the City of New York effected the transfer of emergency ambulance service from the New York City Health and Hospitals Corporation to the Fire Department. The computer personnel from both departments were assigned to and consolidated at Systems. A few years later, in 1999, the Fire Department started changing its computer technology to rely on Oracle-based computer programs, which require various levels of training or at least acquired familiarity with the particular Oracle applications used by a particular employee. The Fire Department does not have any kind of “knowledge building” program that provides ongoing training to employees on a regular basis.
In the Programming Unit at Systems, there are presently four individuals holding the title of Computer System Manager (“CSM”). These CSMs directly or indirectly supervise CSs like plaintiff and other computer-related personnel. In April 2010, the Fire Department posted a vacancy notice for a CSM in the Programming Unit. The qualifications for applying included either a master’s degree in computer science from an accredited college and three years of “progressively more responsible” experience in computer technology of which 18 months had to be supervisory experience as a manager, administrator, or executive, or a baccalaureate degree from an accredited college and four years of experience as described above. In addition, the preferred, but not required, qualifications included familiarity with various Oracle software programs, J2EE architecture, and JAVA.
Systems received 29 applications and selected six for final consideration, including plaintiffs. The six included three candidates from the Fire Department: John Adams, who had supervised plaintiff since 1991 and was white; Laura Pirtle, an African-American woman; and plaintiff. Three were from outside the Fire Department: an Asian woman named Maybo Linn; an Asian male named Yohan Choi; and an Indian male named Mayfield Ea-pen. These six individuals were selected and interviewed by Jason Cheng, who was Deputy Director of Programming for Systems, and Darlene Hasselbring, a Systems Project Manager. Cheng and Hasselbring elected Linn and Eapen for the final round of interviews, and the Assistant Commissioner of the Fire Department, Donald Stanton, selected Linn for the CSM position.
Training on new computer programs within Systems depends upon the projects to which employees are assigned. If they are assigned work that requires knowledge of a particular software application, they either learn the application themselves as part of doing their work or, if Systems’ budget permits it, they are sent out for formal training. Thus, when the Fire Department first transitioned to Oracle, some employees received training on Oracle applications needed for their particular position. Plaintiff received training on several Oracle applications beginning in 2003 and most recently, in November 2010.
In January 2006, plaintiff also began work on the payroll management system EPIS. As project coordinator for EPIS, she came into contact with coworker and data developer Sam Feldman. In early 2009, plaintiff and Feldman got into an altercation, after which plaintiff was removed from the project and Feldman was given a promotion and a pay raise.
Shortly after her removal from EPIS, plaintiff met with Cheng and then Stanton to discuss her feelings that she was being discriminated against because of her race. Plaintiff did not provide any specific alie
In 2010, Cheng appointed plaintiff to be the Fire Department liaison to City Hall for the project referred to as the Data Element Exchange Program (“DEEP”). At some point in late 2011, Cheng told her that DEEP was being postponed and she was being removed from her advisory role. DEEP is still ongoing and plaintiff has maintained a small role in the project.
Plaintiffs job performance ratings for 2010 and 2011, conducted by her supervisor (John Adams, with whom she had competed for the CSM position, and which neither had received), were “Good” and “Very Good,” respectively.
DISCUSSION
I. Standard of Review and Applicable Law
To prevail on a motion for summary judgment, the movant must show that the absence of material and genuine factual issues requires judgment as a matter of law. See Celotex Corp. v. Catrett,
In an employment discrimination case, a defendant is entitled to summary judgment “unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination:” Joseph v. Leavitt,
The framework for analyzing discrimination claims under Title VII is venerable. Under McDonnell Douglas Corp. v. Green,
As to the fourth element, a plaintiff may seek to raise an inference of discrimination by “showing that the employer treated plaintiff less favorably than a similarly situated employee outside his protected group.” Mandell v. County of Suffolk,
If a plaintiff successfully establishes a prima facie case of discrimination, “the defendant may rebut that showing by articulating a legitimate, non-discriminatory reason for the employment action.” Weinstock v. Columbia University,
II. Statute of Limitations
I ruled at oral argument on this motion that I would consider only the Title VII discrimination claims plaintiff asserts that arise from discrete adverse employment actions on or after December 3, 2009 (the “Title VII Statutory Period”). This is because plaintiff filed her EEOC claim on September 29, 2010, and the statute of limitations extends 300 days prior to her filing date. See 42 U.S.C. § 2000e-5(e)(1); Nat'l R.R. Passenger Corp. v. Morgan,
As for plaintiffs section 1983, 1985, and related state and city law discrimination, retaliation, and conspiracy claims, those have a statute of limitations of three years from the action that gave rise to the claim. See Patterson v. Cnty. of Oneida, N.Y.,
III. Discrimination Claims
Once plaintiffs discrimination claim is so narrowed by the Title VII and Section 1983 Statutory Periods, there is little left of it. The main adverse employment action that she alleges during this period was the hiring of Maybo Linn as CSM instead of promoting plaintiff to the job.
As to that, defendants concede, for purposes of their motion only, that plaintiff has proffered sufficient evidence to meet the de minimis standard for a prima facie case on her failure to promote claim. Defendants therefore move directly to steps two and three of the McDonnell Douglas analysis, contending that they have identified a legitimate business reason for hiring Maybo Linn for the CSM position instead of promoting plaintiff to it, and that plaintiff has failed to offer any evidence that this proffered justification was pretextual or that there is independent evidence sufficient to raise an issue of fact that the decision to hire Linn was based in substantial part on racial discrimination against plaintiff. Having reviewed the record, I have to agree with defendants.
At step two of the McDonnell Douglas analysis, based on the undisputed facts, under any standard of comparison of plaintiff to Linn, Linn was eminently more qualified in every respect than plaintiff for the CSM job. Linn already had four years of experience as a CSM for another substantial New York City agency (Administration for Children’s Services), and in that capacity, had supervised over 20 software developers. Plaintiff admitted at her deposition that she was not given the chance to supervise any technical staff in her projects at the Fire Department.
As to step three of the McDonnell Douglas analysis, plaintiff offers a hodgepodge of surmises, allegations, and conclusions to show that defendants’ business justification was pretextual. None of them are sufficient to raise a reasonable inference of discrimination. First, she notes that she had 35 years of experience in the industry, whereas Linn had 25 years. But a quarter century of experience versus a third of a century of experience seems immaterial under any reasonable view. Second, she asserts that any lack of qualifications was due to the Fire Department’s racially-based failure to train her adequately over her tenure. As discussed below, although it seems clear that every employee had differences in their training as compared to any other employee, plaintiff has not identified a single specific training opportunity within the relevant statute of limitations that a non-African-American employee received that she should have received, so it is impossible to find that any such differences were racially-based. Third, she points out that there has been only one black CSM at Systems; that fact, no doubt, influenced defendants’ decision to concede plaintiffs prima facie case for purposes of this motion, but it does not constitute sufficient evidence on which a jury could reasonably find that plaintiff was denied the promotion, in substantial part, because of racial discrimination. Finally, she avers that her supervisor, John Adams, was critical of her and not rude to white .employees at her level, and she draws the conclusion that Adams is “challenged by racial or ethnic diversity.” However, there is no allegation that he ever made, or she ever complained of, a single racially hostile remark about African-Americans to her or anyone else.
The primary focus of plaintiffs effort to raise an issue of fact is her argument that there was another black finalist for the position, Laura Pirtle, who was more qualified than Linn. There are two deficiencies in this argument. First, even assuming arguendo that Pirtle was more qualified than Linn (as to which, as shown below, plaintiff has failed to raise an issue of fact), this is not Pirtle’s case; it is plaintiffs. In other words, plaintiffs argument suffers from a fatal causation problem. Plaintiff must raise an issue as to whether she was denied the promotion because her race played a substantial factor; her effective admission that Pirtle was more qualified than plaintiff means that plaintiff would not have received the promotion even if the element of alleged discrimination were removed — Pirtle would have received it.
The second problem with plaintiffs argument is that the record does not permit the inference that Pirtle was more qualified than Linn. Plaintiffs primary support for this claim is that Pirtle was the only female at the Fire Department who had passed the civil service examination for the CSM position in 2008. Plaintiff contends that under New York State Civil Service Law §§ 52(8), 61(1), and 65(1), the Fire Department was legally obligated to promote Pirtle over the other applicants, and the failure to do so thus indicates racial bias.
Plaintiff misperceives both the facts and the Civil Service Law. The record is undisputed that at the time the Fire Department made the appointment in September 2010, Pirtle was the only person on the certified list that the Fire Department had received from the Civil Service Commission. Under the Civil Service Law, a City agency is required to hire from a certified list only if there are three or more certified candidates on it; if there are not, it is free to hire the most qualified person on a provisional basis from outside the list, which is what the Fire Department did when it hired Linn. See Valentin v. New York State Dept. of Taxation and Finance,
In fact, if one takes a step back and looks at what the Fire Department did in February 2009, when another CSM position had been open and the Fire Department had a certified list of five candidates, the undisputed facts refute plaintiffs claim of racial bias in promotions. The top scoring candidate, a white male, declined the promotion. Two other candidates, a white male (John Adams, who was plaintiffs supervisor), and an African-American male, were offered and accepted the promotion. Of the two remaining candidates, a white female was not selected. Pirtle was on that list; however, she was on unpaid leave of absence, and the Fire Department does not promote employees who are not on the active payroll.
The alleged “violation of law” upon which plaintiff relies is thus not a violation at all, and puts us right back to consideration of the competing candidates’ qualifications. The only other fact relating to Pirtle’s non-appointment upon which plaintiff relies is that Pirtle, like Linn, has a Master’s Degree. That is not enough to allow any reasonable jury to conclude that Linn was selected over Pirtle because of Pirtle’s race. Moreover, plaintiffs argument returns us full circle to her causation deficiency, because she never did pass the civil service test and thus never appeared on any certified list.
Finally, plaintiff relies heavily on the deposition testimony of Phyllis Vickers, an African-American manager at Systems.
Once plaintiffs case is stripped of the clearly adverse employment action of not receiving a promotion in 2010, it begins to get murky as to what facts plaintiff contends constitute other adverse employment actions during the Title VII and Section 1983 Statutory Periods. Defendants have referred to part of her claim as a “disparate pay” claim, and plaintiff is unclear, but it seems to me that it is another species of a failure to promote claim. What plaintiff appears to be claiming is that other CS-ls, who were not African-American, were given an advanced “in-title assignment,” e.g., to CS-2 or higher, which, like a promotion, entailed a salary increase.
Because plaintiffs claim in this regard was so vague, I directed defendants, after receipt of plaintiffs papers in opposition to their motion, to provide additional discovery in the form of documents and a deposition, even though plaintiff had never filed a motion for such discovery during the discovery period.
The de minimis showing required for a prima facie case does not mean that a plaintiff can cherry-pick pieces of a database, using only those that support her case while ignoring those that would conclusively refute it. Considering the small size of the database here, the fact that an Asian and Caucasian have exactly the same advancement history as plaintiff and that an African-American has received a higher assignment level than either the Asian or Caucasian negates any inference of discriminatory motive. Plaintiff may not make out a prima facie case on a comparability basis.
Of course, plaintiff is not confined to a comparability analysis to make
Defendants point out that plaintiff was removed from EPIS instead of Feldman because the remaining work was more suited for Feldman. Adams testified that the remaining work was more technical and more appropriate for Feldman and that most of the coordinating work, plaintiffs job, had already been completed. In response, plaintiff offers no evidence of pretext besides Adams’ alleged comment to plaintiff regarding the fact that Feldman would receive a promotion and she would not. This is insufficient to draw an inference of racially discriminatory intent.
Plaintiffs “removal” from DEEP does not even reach the level of an adverse employment action because she was neither removed nor did she suffer any adverse consequences as a result. In late 2011, plaintiff was told that she would discontinue her role in the governance body of DEEP because it was being temporarily suspended. She was never removed from the project and has continued working on it.
Even if removal from DEEP was determined to be an adverse employment action, it can also be explained by a legitimate business reason. By plaintiffs own admission, the Fire Department’s involvement in DEEP was diminished. This action would undoubtedly lead to the diminution of everyone’s, including plaintiffs, responsibilities. She offers no pretextual evidence that would suggest a racially discriminatory motive.
The final portion of plaintiffs claim is that she failed to receive training on the same basis as non-African American, or Asian, employees. She has not pointed to a single instance during the Title VII or Section 1983 Statutory Period of anyone receiving training that she had requested, or even wanted, and did not receive. The record is undisputed that training was provided on an as-needed basis depending on task assignment; employees who were more focused on the programming area received more programming training, and employees, like plaintiff, who were more interested in project management received project management training. It was plaintiff who expressed a preference for project management — that is, indeed, the field in which she obtained her Master’s Degree — and she received the Oracle software training necessary for that area. There is no evidence at all that plaintiff
IV. Retaliation Claims
a. First Amendment Retaliation
For a First Amendment retaliation claim under 42 U.S.C. § 1988, a public employee must show “that (1) the speech at issue was made as a citizen on matters of public concern rather than as an employee on matters of personal interest; (2) he or she suffered an adverse employment action; and (3) the speech was at least a substantial or motivating factor in the [adverse employment action].” Garcia v. Hartford Police Dep’t,
As was the case with plaintiffs claim for failure to train, resolution of her retaliation claims is made more difficult by the amorphous nature of her presentation. She portrays every communication that discussed racial discrimination with any employee over her more than 20 years of employment as constituting protected activity, and she asserts that every slight or lack of fulfilled preference constitutes an adverse retaliatory action. It is therefore necessary to parse through all of plaintiffs evidence to determine whether there is a viable claim here that could support a reasonable jury verdict on a claim of retaliation.
First, we will start with common ground on the issue of which communications are protected. Both sides agree that her filing of her EEOC claim in September 2010 constitutes protected activity. Plaintiff further alleges that in 2005, she spoke to Fire Department Commissioner Stanton and told him “about my feelings of race discrimination.” Defendants concede that, assuming this statement true for purposes of this motion, this would constitute protected activity for Title VII purposes but not for First Amendment purposes.
Beyond these communications, however, plaintiff has argued much but offered little evidence. She refers to numerous discussions over her 20-plus years of employment with various subordinate and supervisory personnel, but each conversation is described only in the vaguest of generalities. The paucity of detail is particularly glaring because not only was plaintiff deposed on her alleged protected activity, but she has put in a lengthy affidavit in opposition to the motion that, among other things, describes it, but again, only in the most general terms.
At least for her First Amendment claim, the specific content of these conversations (there is no evidence from either party as to any written complaints other than that to the EEOC) is important because, contrary to plaintiffs argument,
In doing this, I am guided by the Second Circuit’s requirement that the primary purpose of the complaint must be discerned: was plaintiff making a complaint about a wrong to all African-Americans at Systems, which would be a matter of public importance, or did she merely make reference to systemic discrimination to show how she had been unfairly treated? “The Second Circuit ... does not permit speech to be characterized as both ‘public’ and ‘private,’ but instead requires that speech be ‘placed in either the ‘public concern’ or ‘private interest’ category’ and that the determination [should] be based on the ‘primary aim’ of the speech.” Alexander v. Karosi, No. 3:95-CV-2469 (AHN),
Before undertaking this analysis, there is a further refinement that can be made. I am going to cull and exclude from both the First Amendment analysis (and the Title VII analysis below) any alleged complaint before March 2007, because from a causation point of view, no reasonable jury could find that Systems was lying in wait for nearly two years before taking any retaliatory action.
Applying these limitations, there is no First Amendment protected activity. Plaintiff describes her purpose in meeting with her Department head, Deputy Director of Programming Jason Cheng, in March 2009, “to discuss concerns about my career being harmed because of my race.” While she does reference discrimination on a more general level, her brief description of the conversation shows that the primary aim of her complaint was to further her individual interests. She asserts that she had a meeting in October 2009 with Cheng and Commissioner Stanton but says nothing more than, “I met with Stanton ... and Jason and discussed feeling [sic] of discriminatory treatment.” These are the only specific communications; the rest are either with co-employees or are alleged to
Because there is no evidence that plaintiff complained of systemic discrimination at Systems, as opposed to seeking to advance her own career, at any time that might support causation of an adverse event during the Section 1983 Statutory Period, her First Amendment retaliation claim is dismissed.
b. Title VII and Section 1983 Retaliation
The standard for raising an issue of fact as to retaliations claims under Title VII and section 1983 is derived from the McDonnell Douglas test for discrimination claims. A plaintiff must show that “(1) she was engaged in protected activity; (2) [the defendant] was aware of that activity; (3) [the plaintiff] suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Lore v. City of Syracuse,
The only protected communications that might temporally raise an issue as to the causation are her meeting with Cheng in 2009; her meeting with Stanton later that year; and her September 2010 EEOC complaint. In each of these, she alleges that she complained of racial discrimination, and in the last she certainly did. We need to then determine what adverse actions she claims were taken in retaliation for these complaints.
Plaintiff points to only two during the Title VII or Section 1983 Statutory Periods.
Most notable about plaintiff’s claim is that, like many of her other allegations, it is based on her subjective conclusions. Instead of obtaining through discovery the particulars of the DEEP program as presently implemented, for example, by offering proof as to who is working on it, what their hours are, and whether their specific tasks include matters previously assigned to plaintiff, the sum total of plaintiffs evidence of retaliation is that after she was given less to do on the project, she “continued to see DEEP technical people from City Hall with whom I had previously worked with appearing at the FDNY and interacting with Maybo Linn, Darlene Hasselbring, and Linda Shang.” But we are not told how often she saw them, what they were talking about, and whether they were involved in winding down DEEP or undertaking some new project. All of this could have been obtained by plaintiff in discovery and offered if it would have benefited her case.
For a court to meddle in the advisability of a particular personnel assignment, putting before a jury the minutia of personnel allocation and the degree of reduction of an employee’s participation in a particular project, where there has been no reduction in pay, no transfer, and no diminution of benefits, would be to assume the role a “super-personnel department,” which the Second Circuit has instructed district courts to avoid. See Byrnie v. Town of Cromwell, Bd. of Educ.,
The only other adverse action plaintiff asserts is her receipt of a “Good” review in 2010, the worst one she had ever received. In order for an action to support a retaliation claim, it must be considered “materially adverse.” See Burlington N. & Santa Fe Ry.. Co. v. White,
Having dismissed all of plaintiffs federal claims, the question becomes whether to retain jurisdiction over plaintiffs claims under the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(l)(a)(7) (“NYCHRL”). This inquiry attracts the provisions of section 1367 of the Judicial Code, which permits district courts to “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). In determining whether to exercise supplemental jurisdiction, the relevant factors to be considered are judicial economy, convenience, fairness and comity. DiLaura v. Power Authority,
This result of applying these factors and considerations to plaintiffs NYCHRL claim is straightforward. Especially in light of the Second Circuit’s decision in Mihalik v. Credit Agricole Cheuvreux North America, Inc.,
The NYSHRL claims are subject to the same McDonnell Douglas burden-shifting analysis as claims under Title VII and section 1983. See Estate of Hamilton v. City of New York,
CONCLUSION
Based on the undisputed facts in the record, plaintiff has failed to adequately claim any Title VII, section 1983, section 1985, or NYSHRL violations. Defendants’ motion for summary judgment is granted. Plaintiffs federal claims and NYSHRL claims are dismissed with prejudice and plaintiffs NYCHRL claims are dismissed without prejudice. The Clerk is directed to enter judgment accordingly.
SO ORDERED.
Notes
. The facts are taken from defendants' Local Rule 56.1 statement. Plaintiff did not adequately dispute any of the statements contained there, and they are therefore deemed admitted to the extent they are non-conclusory (most are not conclusory) and adequately supported by evidence in the record. See Giannullo v. City of New York,
. Plaintiff does not actually assert any section 1983 discrimination claims in her complaint. Because she does raise section 1983 retaliation claims and section 1985 conspiracy claims, the Court will assume that she intended to assert a section 1983 discrimination claim as well.
. Plaintiff asserts, and defendants concede, that she had lengthy “administrative” experience as a project manager, and thus met the fundamental prerequisites for the CSM job. Nevertheless, meeting the basic requirements for a promotion is not the same thing as showing that the person who received the job was not as well-qualified. The CSM job was supervisory, not just administrative, and thus Linn had better experience.than plaintiff.
. Plaintiff did not receive her Master's Degree in Project Management from the Keller Graduate School of Management until 2011, after she applied for the CSM position in 2010.
. There is an allegation that Adams referred to one Arab-American employee as a "terrorist,” but because of its lack of relationship to plaintiff’s claim, that is the classic "stray remark” that is given little weight in the McDonnell Douglas analysis. See Ostrowski v. Atl. Mut. Ins. Companies,
. The Fire Department has produced no evidence of this policy other than an affidavit of a Human Resources Manager. But the business record that the Fire Department has produced which contains this list of five candidates clearly shows Pirtle as “LOA” (leave of absence), distinguishing her from the other candidates who are marked either "DEA” (declined appointment), “APP” (appointed), or “CNS” (considered not selected). There seems to be nothing that could support a jury finding of racial bias from the logical personnel decision not to promote someone who is presently on unpaid leave.
. Plaintiff had filed two letters complaining about inadequate discovery during the discovery period. I authorized her to file a motion and she never did.
. After submission of her opposition to the motion, plaintiff's attorney went on-line to examine employment records at Systems and then asserted, in a supplemental brief, that there are discrepancies between the evidence that the City has submitted on this issue and the on-line personnel records. Putting aside the authenticity issue that the City raises, it correctly points out that these alleged discrepancies are entirely immaterial; they do not help plaintiff in any way to show that she is a victim of racial discrimination.
. Plaintiff also seeks to compare herself to two CSMs, Viktor Kanevsky, a Caucasian male, and Kamaldeep Deol, an Asian female. Their job descriptions are so different from plaintiff's — they aré management positions, not line positions — that no comparison can be drawn.
. Removal from EPIS occurred in March 2009, so it is outside of the Title VII Statutory Period but within the Section 1983 Statutory Period. For the purposes of this case, the analysis for section 1983 discrimination claims is substantively the same as that for a Title VII (discussed above). See Patterson v. Cnty. of Oneida, N.Y.,
. This is two years prior to her removal from EPIS, which is the earliest conceivable adverse employment action within the Section 1983 Statutory Period.
. Plaintiff also asserts conspiracy claims under 42 U.S.C. §§ 1983, 1985. Since I have found no substantive violation of Title VII or section 1983, the conspiracy claims fail. In addition, plaintiff has not opposed defendants’ motion with regard to her substantive due process claim under section 1983 and that claim is therefore deemed abandoned. See Taylor v. City of New York,
. Plaintiff asserts that her removal from the EPIS program in March of 2009 is an adverse action. This is within the Section 1983 Statutory Period. Nevertheless, this cannot be seen as retaliation because plaintiff did not make any "protected” complaints prior to this date for which she could have been retaliated against. Plaintiff’s 2005 complaint to Stanton is four years prior to the EPIS removal and thus, under the Court's prior analysis, too far removed in time to be considered a basis for retaliation in 2009.