MARGO K. BRODIE, District Judge:
On December 12, 2012, Plaintiff Heidi Husser commenced this action against the New York City Department of Education. (Compl., Docket Entry No. 1.) By Second Amended Complaint filed September 6, 2013, Plaintiff named John Shea and John O'Connell as additional defendants. (Second Am. Compl., Docket Entry No. 16.) Plaintiff brings claims of discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL") and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 ("NYCHRL"), as well as wage discrimination in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d) ("EPA"), and retaliation in violation of 29 U.S.C. § 215(a)(3).
Defendants moved for summary judgment, and, on April 3, 2014, the Court referred Defendants' motion to Magistrate Judge James Orenstein for a report and recommendation. By Report and Recommendations dated September 15, 2015 ("R & R"), Judge Orenstein recommended that the Court (1) grant Defendants' motion for summary judgment as to Plaintiff's hostile work environment claims, and (2) deny Defendants' motion in all other respects.
A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "Failure to object to a magistrate judge's report and recommendation within the prescribed time limit `may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object.'" Sepe v. N.Y. State Ins. Fund, 466 Fed.Appx. 49, 50 (2d Cir.2012) (quoting United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)); see also Almonte v. Suffolk Cty., 531 Fed.Appx. 107, 109 (2d Cir.2013) ("As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point." (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.2003))); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.2010) ("[A] party waives appellate review of a decision in a magistrate judge's Report and Recommendation if the party fails to file timely objections designating the particular issue.").
The Court has reviewed the unopposed R & R, and, finding no clear error, the Court adopts Judge Orenstein's R & R in its entirety pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the Court grants Defendants' motion for summary judgment as to Plaintiff's Title VII, NYSHRL and NYCHRL hostile work environment claims, and denies Defendants' motion for summary judgment in all other respects. In accordance with the Court's June 27, 2014 Order, the parties are directed to submit a joint pre-trial order within thirty (30) days of the date of this Memorandum and Order.
SO ORDERED.
JAMES ORENSTEIN, United States Magistrate Judge:
Plaintiff Heidi Husser ("Husser"), an employee in the Division of School Facilities ("DSF") within the New York City Department of Education ("DOE"), has accused the DOE and two of her supervisors of gender-based discrimination and retaliation, in violation of federal, state, and municipal law. See Docket Entry ("DE") 16 (Second Amended Complaint) ("Complaint").
The following brief summary of background facts is drawn from the parties' statements of undisputed facts pursuant to Local Civil Rule 56.1 and set forth in the light most favorable to Husser as the non-moving party. See Local Civ. R. 56.1; Fed.R.Civ.P. 56(a); Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006); DE 46 (Defendants' Rule 56.1 Statement) ("Def. Stmt."); DE 51 (Plaintiff's Rule 56.1 Statement) ("Pl. Stmt."); see also DE 44 (defendants' memorandum) ("Memo"); DE 48 (defendants' reply memorandum) ("Reply"); DE 50 (Husser's memorandum in opposition) ("Opp."). A more detailed summary of the facts pertinent to each particular claim is set forth at the start of the discussion of that claim.
Husser began working for the DOE on August 19, 2008,
Husser's annual salary started at $80,749. On July 1, 2009, when the DOE raised the salaries of all of its employees, Husser's annual pay rose to $83,577. Pl. Stmt. ¶¶ 9, 46; Def. Stmt. ¶¶ 9, 46; Stodola Decl. Ex. S (base salary chart) ("Salary chart") at 4. Husser's salary is lower than that of the directors of eight other DSF components: Bernard Orlan, director of Environmental Health & Safety; Angelo Lisa, director of Emergency Preparedness; Al Boccio, director of Information Technology ("IT") Services; Volkert Braren, director of Program Management; William Wilson, director of Human Resources; Salvatore Calderone, director of Field Operations; Frank Borowiec, director of Facility Management Services; and Bramnarain Mahadeo, director of Maintenance. Pl. Stmt. ¶ 15, 48; Def. Stmt. ¶¶ 15, 48.
Husser alleges that DSF had a sexist culture that was hostile to women in general and to her in particular. She asserts that throughout her employment, high-ranking officials, including defendants Shea and O'Connell, routinely referred to women as "girls," "hot," "doable" and "adorable," commented about having sex with certain women in the office, and permitted and encouraged sexual innuendo and sexually demeaning name-calling. Husser more specifically complains that Shea and O'Connell subjected her to a dozen specific offensive remarks and incidents from late 2009 through July 2012. See Complaint ¶¶ 12-15; Pl. Stmt. ¶¶ 85, 103, 106, 108-09.
Husser claims that over the next several months, the defendants retaliated against her for complaining by: asking her for the first time to justify her absences; closely monitoring her performance; excluding her from meetings, conference calls, and group email exchanges; and temporarily revoking her privilege to use a DSF car. Complaint ¶¶ 36-37; Pl. Stmt. ¶¶ 23, 25, 121-28; Def. Stmt. ¶¶ 23, 25; Opp. at 23.
The OEEO issued its final report on Husser's complaint on October 11, 2102. It found Husser's claims were not substantiated, but criticized Shea for failing to self-report Husser's complaint. Pl. Stmt. ¶¶ 26-28; Def. Stmt. ¶¶ 26-28. The report also noted a "history of inappropriate conduct by all involved parties" and that Shea had stated that "Husser's salary, based upon her title, should be higher." Stodola Decl., Ex. K (the "OEEO Report") at 23. The report further recommended that "any reasons for Ms. Husser's salary being substantially lower than other directors at DSF be explicitly tied in with performance." Id. Shea received a two-week suspension following the report. Pl. Stmt. ¶ 131; DE 52 (Paster Decl.), Ex. A ("Shea Dep.") at 246-47.
Husser claims that the defendants continued to retaliate against her after the OEEO issued its report. Prior to the OEEO Report, Husser and all other DSF directors held parallel positions on the Division's organizational chart. On January 15, 2013, however, in a move that Husser describes as an effective demotion, the DOE appointed Linda Green ("Green") to the newly created position of Chief Administrative Officer, and had Husser and three other directors — Boccio, Braren, and Wilson — report directly to her rather than to CEO Shea. Soon thereafter, Green made Husser move to a cubicle that Husser found less convenient. Complaint ¶ 39; Pl. Stmt. ¶¶ 30-35; Def. Stmt. ¶¶ 3035; Salary Chart at 3; see Stodola Decl., Ex. R ("Organizational Chart"). In addition, Husser asserts that she was excluded from some participation in a union arbitration in September 2013, although the parties agree that then-Executive Director Estelle later invited Husser to attend the arbitration and Husser declined. Green also allegedly denied Husser's request to attend a continuing legal education ("CLE") program in December 2013. Pl. Stmt. ¶¶ 36, 39-44; Def. Stmt. ¶¶ 36, 39-44.
Husser filed a complaint with the EEOC on November 21, 2012 and was issued a right-to-sue letter on July 25, 2013. She filed her initial complaint in this court alleging a violation of the Equal Pay Act on December 12, 2012, DE 1; Husser then filed her first amended pleading on April 12, 2013, adding claims under the Human Rights Laws and New York State and New York City, DE 12; and then filed a second amended pleading adding claims under Title VII of the Civil Rights Act of 1964, as amended — the operative Complaint that the instant motion addresses — on September 6, 2013. See 42 U.S.C. §§ 2000e et seq. ("Title VII"); 29 U.S.C. § 206(d) (the "Equal Pay Act" or "EPA"); N.Y. Exec. Law §§ 290 et seq. (the "NYSHRL"); N.Y.C. Admin. Code §§ 8-101
The defendants move to dismiss each of Husser's claims. They argue that Husser's pay-related claims fail both because her job is not sufficiently comparable to the other DSF directors about whose higher salaries Husser complains and because her salary was determined pursuant to a gender-neutral plan for managerial compensation. The defendants further assert that they are entitled to judgment on the retaliation claims because Husser cannot demonstrate that she was subjected to any cognizable adverse employment action and that the record — and in particular the length of time between Husser's complaints and the actions about which she complains — does not permit an inference that they had any retaliatory motive. Finally, they contend that the record does not support of the proposition that Husser was subjected to a hostile work environment. I address each issue in turn below after first discussing the applicable legal standard and procedural matters.
"Summary judgment is warranted only upon a showing by the movant that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.2008) (citations and internal quotation marks omitted); accord Moore v. City of New York, 2015 WL 1198084, at *3 (E.D.N.Y. Mar. 16, 2015); Fed.R.Civ.P. 56(a). A fact is material if it "`might affect the outcome of the suit under the governing law.'" Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue is presented if "`the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Holtz, 258 F.3d at 69. In determining whether to grant summary judgment, a court is confined to issue-finding, not issue-resolution. Jillian Mech. Corp. v. United Serv. Workers Union Local 355, 882 F.Supp.2d 358, 364 (E.D.N.Y.2012) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994)). The court does not "weigh the evidence and resolve ... factual issues" but rather "determine[s] as a threshold matter whether there are genuine unresolved issues of material fact to be tried." Owens v. New York City Hous. Auth., 934 F.2d 405, 408 (2d Cir.1991) (quoting Gibson v. Am. Broadcasting Cos., 892 F.2d 1128, 1132 (2d Cir.1989)); see also Fed.R.Civ.P. 56(a).
The moving party must demonstrate "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); accord Moore, 2015 WL 1198084, at *3. If the moving party meets that burden, "the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir.2010) (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505). "To defeat a summary judgment motion, the nonmoving party ... may not rely on conclusory allegations or unsubstantiated speculation." Id. (internal citations omitted).
In evaluating an employer's motion for summary judgment in the context of an employment discrimination action, courts must be "especially cautious" in light of the difficulty of locating direct evidence of the employer's discriminatory intent, and the need to evaluate circumstantial proof of its intentions. Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). Nevertheless, "summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir.1994). "Although intermediate evidentiary burdens shift back and forth under this framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Edwards v. Jericho Union Free Sch. Dist., 55 F.Supp.3d 458, 465 (E.D.N.Y.2014) (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
In an argument improperly relegated to a footnote, the defendants contend that Husser's pay discrimination claims under Title VII and state and municipal law are almost completely time-barred. Specifically, they assert that Husser can seek relief on her Title VII pay discrimination claim only for paychecks received on or after February 12, 2012 (300 days prior to Husser's EEOC complaint). They further argue that Husser can secure no relief at all for pay discrimination under the NYSHRL and NYCHRL, each of which they say has an applicable one-year limitations period, because the salary of which she complains was set more than a year before she initiated this action. See Memo. at 12-13 n. 4. As explained below, I disagree.
First, pursuant to the Ledbetter Fair Pay Act (the "Ledbetter Act"), 42 U.S.C. § 2000e-5(e), the continuing violation doctrine allows Husser to seek relief under Title VII for continuing pay discrimination, if any, about which she timely complained. Second, the one year limitations period under state and municipal law applies only to claims against schools, school districts, and boards of education. N.Y. Educ. Law § 3813(2-b); see Amorosi v. South Colonie Indep. Cent. School Dist., 9 N.Y.3d 367, 373, 849 N.Y.S.2d 485, 880 N.E.2d 6 (App.Div.2007). Husser's pay discrimination claims against the individual
Third, the defendants' argument, if accepted, would produce the anomalous result of treating each new paycheck as the basis for a pay discrimination claim under federal law, while simultaneously finding that Husser's claims accrued only when her salary was set for purposes of the state and municipal claims. Of course, the court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) found the so-called continuing violation theory did not apply to equal pay claims under federal law, but Congress quickly rejected that statutory construction by enacting the Ledbetter Act. The question thus becomes what effect, if any, the legislative clarification that the continuing violation doctrine applies to federal pay discrimination claims has on the interpretation of corresponding state and municipal laws.
The defendants rely on a brief passage in Russell v. County of Nassau, 696 F.Supp.2d 213, 230 (E.D.N.Y.2010) for the proposition that because Congress did not amend state law (and because the New York legislature did not enact a corresponding state law), the continuing violation doctrine embodied in the Ledbetter Act was not exported to claims under the NYSHRL (or, the defendants add, to claims under the NYCHRL, even though Russell did not address such claims at all). The decision in Russell is of course correct that Congress could not and did not amend state law — but I respectfully suggest that that does not suffice to end the analysis under either the NYSHRL or the NYCHRL.
With respect to the state statute, the case law of this circuit is clear that the federal and state civil rights laws are to be given similar constructions. Hyek v. Field Support Servs., Inc., 461 Fed.Appx. 59, 60 (2d Cir.2012) ("Claims brought under the NYSHRL are `analyzed identically' and `the outcome of an employment discrimination claim made pursuant to the NYSHRL is the same as it is ... under Title VII.'" (citation omitted)); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001) (analyzing NYSHRL claim under same framework as Title VII claim at summary judgment). It would therefore be anomalous to hold that because Congress — in acting to correct what it viewed as the Supreme Court's incorrect interpretation of Title VII in Ledbetter by changing the text of the federal statute the Court considered — had not also acted ultra vires to change state law, that a federal court should continue to give state law a construction parallel to the now-rejected construction of prior federal law. Instead, it makes more sense, and is more faithful to controlling law, to continue to construe the two laws similarly and therefore to construe a claim of pay discrimination to assert a continuing violation under both. That is exactly what a number of state courts in New York have concluded in interpreting the NYSHRL in the aftermath of the Ledbetter Act. See Williams v. Deutsche Bank Grp., 2013 WL 1455924, at *6 n. 1 (N.Y.Sup.Ct.2013) (collecting cases applying Ledbetter Act to state and city equal pay discrimination claims).
With respect to municipal law, the defendants' reliance on Russell is even more plainly misplaced — not only because Russell said nothing about the NYCHRL, but more importantly because the law is clear that the latter statute must be interpreted broadly to achieve its remedial goal. For that reason as well, New York courts rely on the Ledbetter Act to treat claims of pay discrimination under the NYCHRL as continuing violations. See Deutsche Bank Grp., 2013 WL 1455924 at *6 n. 1 (collecting cases); see also Mohamed v. NYU, 2015 WL 3387218, at *19-20
The defendants assert — again in a footnote — that Husser's federal hostile work environment claim is time-barred because such claims must be brought within 300 days of the discriminatory act. Memo at 16 n. 9; see 42 U.S.C. § 2000e-5(e)(1). But a hostile work environment claim by its very nature involves repeated conduct over time rather than a discrete occurrence on a particular day. See, e.g., Ferraro v. New York City Dep't of Educ., 2015 WL 1476392, at *7 (E.D.N.Y. Mar. 31, 2015) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). It is therefore timely if at least one act contributing to the claim occurred within the limitations period. See Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir.2004) (citing Morgan, 536 U.S. at 115, 122 S.Ct. 2061). As the defendants concede, at least one such alleged act occurred in 2012. See Complaint ¶ 16; Memo at 16 n. 9; Opp. at 25. The federal hostile work environment claim is therefore timely.
Husser claims that the defendants willfully failed to pay her wages equal to those paid to men for equal work. Complaint ¶¶ 42-44. The Equal Pay Act "prohibits employers from discriminating among employees on the basis of sex by paying higher wages to employees of the opposite sex for `equal work.'" Chepak v. Metro. Hosp., 555 Fed.Appx. 74, 76 (2d Cir.2014) (quoting Belfi, 191 F.3d at 135). For purposes of both federal and state law, this claim is governed by the familiar burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Rambacher v. Bemus Point Cent. Sch. Dist., 307 Fed.Appx. 541, 543 (2d Cir.2009) (citing McDonnell Douglas, 411 U.S. at 792, 93 S.Ct. 1817); Setelius v. Nat'l Grid Elec. Svcs. LLC, 2014 WL 4773975, at *6 (E.D.N.Y. Sept. 24, 2014) (applying same analysis to state law discrimination claims); Sista v. CDC Ixis North Am., Inc., 2005 WL 356973, at *6 n. 7 (S.D.N.Y. Feb. 15, 2005) (same).
Applying that burden-shifting analysis to the instant equal pay claim requires Husser to make an initial showing that her employer pays different wages to employees of the opposite sex; that the differentially paid employees perform equal work on jobs requiring equal skill, effort and responsibility; and that the jobs are performed under similar working conditions. E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 255 (2d Cir.2014) (citing Belfi, 191 F.3d at 135). If she makes that showing, "the burden shifts to the employer to demonstrate that wage disparities are due to ... [a system of] differentials based on any factor other than sex, provided it was implemented for a legitimate business reason." Forden v. Bristol Myers Squibb, 63 Fed.Appx. 14, 15 (2d Cir.2003) (quoting Belfi, 191 F.3d at 136). "Once the employer proves that the wage disparity is justified[,] ... `the plaintiff may
Husser predicates her equal pay claims on a comparison of her salary with the higher salaries of eight male directors of other DSF components. DSF has a pay scale that assigns to each position a pay level designated by an alphanumeric code; the following chart summarizes the pay levels, the corresponding annual salary ranges, and the actual annual salaries paid to Husser and each of her putatively comparable male colleagues.
Name Directorship Pay Level Salary Range Actual Salary Husser Labor Relations G35 $70,000-$105,000 $83,577 Boccio Information Technology G4 $81,000-$124,000 $107,959 Wilson Human Resources G4 $81,000-$124,000 $117,653 Mahadeo Maintenance G5 $95,000-$145,000 $121,732 Borowiec Facility Management Services G5 $95,000-$145,000 $122,648 Lisa Emergency Preparedness G4 (G5 PIO) [no evidence6 ] $125,046 Braren Program Management L-VIII $88,548-$114,896 $131,190 Orlan Environmental Health & Safety G5 $95,000-$145,000 $136,709 Calderone Field Operations G5 $95,000-$145,000 $145,000
Pl. Stmt. ¶¶ 95-101; Salary chart; Pay Plan, Ex. U through BB (job descriptions and resumes for each comparator). The record thus unequivocally establishes that Husser receives a lower salary than the eight male DSF directors to whom she compares herself.
Husser must also establish, however, that those colleagues have jobs similar to hers. She need not show that their respective jobs are "identical," but she must demonstrate that they are "substantially equal." Lavin-McEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir.2001). That in turn requires that Husser prove that the jobs being compared have common duties or content, and do not simply overlap in titles or classifications. E.E.O.C. v. Port Auth. of New York & New Jersey, 2012 WL 1758128, at *3 (S.D.N.Y. May 17, 2012) ("superficial comparisons based on job title or code are insufficient"); Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir.1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). The pertinent federal regulations provide that "equal work" under the EPA is evidenced not by "job classifications or titles but ... rather on actual job requirements and performance." 29 C.F.R. § 1620.13(e); see also EEOC Compliance Manual § 10-IV(E)(2) (2000) ("[j]ob content ... determines
Against this legal backdrop, I consider the following salient facts about Husser's job and those of her male colleagues:
The record thus gives each party sufficient evidence to cite in seeking to persuade a fact-finder that Husser performed equal to that of her more highly paid male colleagues. Husser can point to the fact that she and the other directors all have the same title; they all work for the same division; they all shared common supervision for much of the time at issue (and even after Green's appointment, Husser continues to have the same supervisors as three of her fellow directors); they all have specialized skills and experience; they all handle regulatory compliance for their respective components; and they all make decisions that affect DSF as a whole. The defendants can focus on the substantive differences among each directors duties and the wide array of their departments' respective sizes and budgets. In such circumstances, it is clearly the fact-finder's role to assess such evidence and determine whether Husser has made a prima facie showing that she and her colleagues had comparable jobs for purposes of the Equal Pay Act; summary judgment on this issue is therefore unavailable.
Once a plaintiff makes a prima facie showing of an EPA violation, the defendants must establish that the pay difference at issue is the result of a gender neutral system adopted for a genuine business reason. See 29 U.S.C. § 206(d)(1); Tomka, 66 F.3d at 1310; see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 526 (2d Cir.1992). "This limitation prevents the employer from relying on a compensation differential that is merely a pretext for sex discrimination-e.g., determining salaries on the basis of an employee's height or weight, when those factors have no relevance to the job at issue." Engelmann v. Nat'l Broadcasting Co., 1996 WL 76107, at *7 (S.D.N.Y. Feb. 22, 1996). Thus, an employer may properly decide to pay higher salaries to employees with greater experience, more advanced educational degrees, or objectively better credentials than their co-workers. See, e.g., Dey v. Colt Constr. & Dev., 28 F.3d 1446, 1462 (2d Cir.1994); Setelius, 2014 WL 4773975, at *31; Engelmann, 1996 WL 76107, at *10.
The defendants contend that DOE management positions are classified on an alphanumeric scale with a particular salary range for each management level, and that an individual manager's salary within that applicable range is based on that manager's prior salary and qualifications. They further assert that Husser's salary, like the higher salary of each of her male colleagues, was set in accordance with that policy. Memo at 11; see Def. Stmt. ¶ 15; Pl. Stmt. ¶ 15; Pay Plan at 1.
The defendants also argue that the putative comparators were hired at different times, had different salary histories, occupy positions with different grades, and have different civil service titles. Memo at 11. Indeed, each of the putative comparators has more than ten years of experience in his respective field, each has worked ten or more years at the DOE and each has worked at least three years in his current position. They contend that those facts provide a sufficient nondiscriminatory reason for the pay disparity of which Husser
The defendants having adduced evidence of a gender-neutral pay system, Husser has the burden of proving that that system is in fact a pretext for sex discrimination. See Aldrich, 963 F.2d at 526. "The appropriate inquiry to determine if the factor put forward is a pretext, is whether the employer has `use[d] the factor reasonably in light of the employer's stated purpose as well as its other practices.'" Id. (citations omitted). The defendants "`cannot attain summary judgment unless the evidence ... on that issue is conclusive.'" See Ebbert v. Nassau Cty., 2007 WL 674725, at *3 (E.D.N.Y. Mar. 5, 2007) (citations omitted).
The evidence here is not sufficiently conclusive to warrant summary judgment. Husser contends that the managerial pay scale allowed the defendants to exercise discretion in a discriminatory way to assign a managerial employee to a given pay level. The exercise of such discretion could result in a difference if up to a $59,000 between pay levels. In addition, the job listing to which Husser responded did not specify the assigned grade level; instead, it specified only that the salary was "$74,879+." Stodola Decl., Ex G (job posting) at 2. Further, CEO Shea testified that employees could be, and were, offered starting salaries above the salary range specified for a given position, and that he decided to obtain discretionary wage increases for some employees but not for Husser. See Pl. Stmt. ¶¶ 90-93; Shea Dep. at 189-90. On this record, I cannot conclude that no reasonable juror could make a finding of pretext. I therefore respectfully recommend that the court deny the motion for summary judgment on Husser's EPA claim.
A claim of unequal pay for equal work under Title VII and the NYSHRL is generally analyzed under the same standards used in an EPA claim. Hyek, 461 Fed.Appx. at 60; Setelius, 2014 WL 4773975, at *6. Under Title VII and the NYSHRL, a plaintiff must show that she was a member of a protected class; she was qualified for the job in question; she was paid less than members outside of the protected class for the same work; and the employer's decision to pay the plaintiff less occurred under circumstances that give rise to an inference of discrimination. Belfi, 191 F.3d at 139-40. The same burden-shifting analysis also applies to the state law claim as to the claim under Title VII. Unlike an EPA plaintiff, a Title VII plaintiff must also produce evidence of discriminatory animus in order to make out a prima facie case of intentional sex-based
Like her Equal Pay claims, Husser has shown that she was qualified for the job, paid less than other male comparators for substantially equal work and that the defendants' decision gives rise to an inference of discrimination. While Husser has not produced evidence that the DSF intentionally paid her less than any of her comparators because of her gender, she relies on the fact that those employees were paid more than she was, that they were similarly situated, that they are men and that the employer knew about the disparity because both O'Connell and Shea told Husser that her salary was "not what it should be." Opp. at 13; Pl. Stmt. ¶ 86-87; OEEO Report at 23. Additionally, Husser alleges that Shea had the authority to request raises for members of his staff and that he did so for certain members of his staff, including several male directors, but not Husser. Pl. Stmt. ¶ 92; Complaint ¶¶ 18-28. By showing that Shea and O'Connell knowingly failed to redress any discriminatory pay practice, Husser has met her burden to show that a triable issue of fact exists regarding whether the defendants acted with a discriminatory intent. I therefore respectfully recommend that the court deny the motion for summary judgment on Husser's discrimination claims under Title VII and the NYSHRL. See Tomka, 66 F.3d at 1313; Belfi, 191 F.3d at 139-40.
The court "`must analyze NYCHRL claims separately and independently from any federal and state law claims.'" Velazco v. Columbus Citizens Found., 778 F.3d 409, 411 (2d Cir.2015) (per curiam) (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir.2013)); N.Y. City Admin. Code § 8-130. Under that municipal law, Husser must show only that she was treated less well than other employees because of her sex. See Zambrano-Lamhaouhi v. New York City Bd. of Educ., 866 F.Supp.2d 147, 160 (E.D.N.Y.2011). For the same reasons discussed above that the record warrants a trial on the corresponding federal and state law claims, I conclude that the evidence supporting Husser's discrimination claim under the more permissive NYCHRL is likewise sufficient to preclude summary judgment. I therefore respectfully recommend that the court deny the motion for summary judgment on Husser's discrimination claim under the NYCHRL.
To state a retaliation claim under Title VII and the NYSHRL, Husser must allege that she engaged in a protected activity, that the defendants were aware of it, and that as a result they subjected her to some sort of adverse employment action. See Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir.2013) (per curiam) (quoting Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.2012)); Schiano, 445 F.3d at 608; St. Juste v. Metro Plus Health Plan, 8 F.Supp.3d 287, 322 (E.D.N.Y.2014) (N.Y.SHRL claims); Sass v. MTA Bus Co., 6 F.Supp.3d 238, 247 (E.D.N.Y.2014) (collecting cases). To
"[T]he court's role in evaluating a summary judgment request is to determine only whether proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive." Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir.2013) (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005)).
The parties agree that Husser engaged in protected activity by informally complaining in April 2012 and then filing her complaint with the EEOC on July 5, 2012; and they further agree that the DOE was aware of this activity. They disagree as to whether the record sufficiently establishes the remaining elements of adverse employment action and causality; I address each issue in turn below.
In the context of a retaliation claim, an adverse employment action is any action that a reasonable employee would found the challenged action materially adverse that "could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). While Title VII "does not set forth a general civility code for the American workplace," id. at 68, 126 S.Ct. 2405 (citations omitted), the scope of actions that may be materially adverse for purposes of a Title VII retaliation claim is broader than those actions prohibited by Title VII's anti-discrimination provisions and "`extends beyond workplace-related or employment-related retaliatory acts and harm.'" Hicks v. Baines, 593 F.3d 159, 165 (2d Cir.2010) (quoting Burlington, 548 U.S. at 67, 126 S.Ct. 2405); see Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 721 (2d Cir.2010) ("The anti-retaliation law `protects an individual not from all retaliation, but from retaliation that produces an injury or harm.'" (quoting Burlington, 548 U.S. at 67, 126 S.Ct. 2405)); Bowen-Hooks v. City of New York, 13 F.Supp.3d 179, 224-25 (E.D.N.Y.2014). In addition, "the alleged acts of retaliation need to be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently `substantial in gross' as to be actionable." Hicks, 593 F.3d at 165. In evaluating whether an action is materially adverse, "`[c]ontext matters,' as some actions may take on more or less significance depending on the context." Tepperwien, 663 F.3d at 568. Accordingly, "alleged acts of retaliation must be evaluated both separately and in the aggregate, as even trivial acts may take on greater significance when they are viewed as part of a larger course of conduct." Id.
Husser points to several incidents as retaliatory adverse employment actions: the appointment of Green and the decision
Some of those alleged actions plainly do not suffice to support a claim of retaliation on their own. See, e.g., Dhar v. New York City Dep't of Transp., 2014 WL 4773965, at *13 (E.D.N.Y. Sept. 24, 2014) (finding that assigning plaintiff to work in certain environment was nothing more than merely annoying even under the less stringent retaliation standard); Setelius, 2014 WL 4773975 at *8 (finding that denying training to employee was not an adverse employment action even under more inclusive standard for retaliation claims); Nicastro v. Runyon, 60 F.Supp.2d 181, 186 (S.D.N.Y.1999) (excessive scrutiny from supervisors and requiring documentation for sick leave could not support a Title VII retaliation claim); but see Hicks, 593 F.3d at 165 (finding that changes to plaintiff's work schedule and work location amounted to adverse employment actions because the changes results in work environments that were hazardous and dangerous).
Nevertheless, Husser has adduced evidence that, in the aggregate, could allow a reasonable jury to determine the conditions of her employment following her complaint to Santana and OEEO were made sufficiently adverse to support a retaliation claim. The temporary revocation of Husser's car privileges, her exclusion from part of an arbitration, and the change in her supervision — resulting in her no longer reporting directly to the DSF CEO, but instead indirectly to him through Green — could all suffice, in the aggregate, to persuade a jury that Husser has succeeded in making the fact-intensive, context-specific showing of an adverse employment action. See Pl. Stmnt ¶¶ 92-93, 122-28; Opp. at 23; see Vega, 801 F.3d at 91-92 (finding that plaintiff adequately pleaded retaliation claims under Title VII where his assignment was changed, his paycheck was temporarily reduced, he was not notified of a curriculum change and was given a negative performance review); Giordano-Forkan v. New York City Dep't of Educ., 2014 WL 5369426, at *3 (S.D.N.Y. Oct. 17, 2014) ("An action resulting in the denial of a pay raise can qualify as an adverse employment action."). But see Kelly v. Huntington Union Free Sch. Dist., 2012 WL 1077677, at *16 (E.D.N.Y. Mar. 30, 2012) (the plaintiff's job transfer was not an adverse action because the plaintiff would receive the same compensation and benefits, she failed to indicate how her new position would fail to advance her career and instead "merely state[d] that it was a `step down'"). Viewed in the context of her other allegations, it is plausible that the actions of which she complains could very well deter a reasonable worker from complaining. Vega, 801 F.3d at 91-92. Husser's claims thus "plausibly paint a mosaic of retaliation," id. at 92, that suffices to withstand the instant motion for summary judgment.
Husser must also show that the adverse employment actions at issue were the result of her complaints. That causal connection "`can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.'" Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001) (quoting Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996)). However, "the cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action
Husser informally complained to Santana sometime in the Spring of 2012, but she did not file a formal complaint until July 2012. She claims that the increased scrutiny of her time records, as well as her exclusion from meetings and calls, began that same month. Pl. Stmt. ¶¶ 36-37. While her allegations are disputed, they suffice to show that the Husser's formal complaint and the later actions were close enough in time to support an inference that they were causally related. Moreover, after the OEEO issued its report in October 2012 — which criticized Shea and noted that Husser's pay should be higher — Shea was suspended for two weeks. The following month, in November 2012, Husser temporarily lost her company car privilege; two months after that, on January 15, 2013, Green was appointed and Husser was, as she hopes to persuade a fact-finder, effectively demoted. A jury could infer from that sequence of events that the defendants retaliated against Husser both for filing a formal complaint to the OEEO and for the official consequences to Shea of that complaint.
I therefore respectfully recommend that the court deny the motion for summary judgment on Husser's retaliation claims under federal and state law.
NYCHRL claims for retaliation are analyzed under a similar framework to Title VII and the NYSHRL, except that a plaintiff need only show the employer's conduct was "reasonably likely to deter a person from engaging in protected activity." NYCHRL § 8-107(7); Williams, 61 A.D.3d 62, 71, 872 N.Y.S.2d 27 (N.Y.App. Div.2009); Mihalik, 715 F.3d at 112 (explaining the standard for evaluating retaliation claims under the NYCHRL). Under this more liberal standard, I similarly conclude that plaintiff has sufficiently pleaded a claim for retaliation for the same reasons as set forth above.
To state a Title VII hostile work environment claim, Husser must show that she endured conduct that was severe or pervasive enough to create an objectively hostile or abusive work environment, that she subjectively perceived the conduct as hostile or abusive, and that the conduct occurred because of the plaintiffs sex. Robinson v. Harvard Prot. Servs., 495 Fed.Appx. 140, 141 (2d Cir. 2012) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir.2007)). In assessing the work environment, the court must consider the totality of the circumstances, including the frequency and severity of the allegedly discriminatory conduct; whether it is threatening and humiliating rather than merely an offensive utterance; and whether it unreasonably interfered with Husser's
To establish that a work environment was objectively severe or hostile, "a plaintiff need not show that her hostile working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered her working conditions." Pucino v. Verizon Commc'ns, Inc., 618 F.3d 112, 119 (2d Cir.2010). The requirement of "severe or pervasive" conduct does not mean that only egregious behavior is actionable, but neither do merely mild or isolated incidents of harassment suffice. Dawson v. County of Westchester, 373 F.3d 265, 273 (2d Cir.2004). Isolated incidents generally will not suffice to establish a hostile work environment unless they are extraordinarily severe. See, e.g., Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.2000) (sexually explicit verbal abuse of a female firefighter created a justified fear that she would be left in peril at fire scenes); Tomka, 66 F.3d at 1305 (observing that a single sexual assault may be sufficient to alter the terms and conditions of the victim's employment).
"[T]he kinds of workplace conduct that may be actionable under Title VII ... include `[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.'" Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (quoting 29 C.F.R. § 1604.11(a) (1985)). The Second Circuit distinguishes between "uninvited sexual solicitations; intimidating words or acts; [and] obscene language or gestures" and "the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers," the latter of which does not support a viable claim. Redd v. New York Div. of Parole, 678 F.3d 166, 177 (2d Cir.2012) (alterations in original) (citations omitted). "`Casual contact that might be expected among friends — [a] hand on the shoulder, a brief hug or a peck on the check — would normally be unlikely to create a hostile environment in the absence of aggravating circumstances such as continued contact after an objection.... But when the physical contact surpasses what (if it were consensual) might be expected between friendly coworkers ... it becomes increasingly difficult to write the conduct off as a pedestrian annoyance.'" Id. (quoting Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir.2006)) (internal quotation marks omitted).
In support of her hostile work environment claim, Husser points to ten incidents involving Shea, and two involving O'Connell, including email exchanges and comments at off-site gatherings, over the course of three years, beginning in 2009 and continuing until July 2012:
Complaint ¶ 16; Pl. Stmt. ¶¶ 103-119.
The defendants argue that these comments are not sufficiently pervasive or severe and that such comments did not alter the terms or conditions of her employment. I agree. First, the twelve cited remarks and events over the course of a three-year period are not sufficiently pervasive. "The infrequency of the offensive comments is relevant to an assessment of their impact. A handful of comments spread over months is unlikely to have so great an emotional impact as a concentrated or incessant barrage." Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir.1995) (finding that nine comments made over a seven month period were too infrequent to be severe or pervasive). "Isolated, minor acts or occasional episodes do not warrant relief." Brennan v. Metro. Opera Assoc., 192 F.3d 310, 318 (2d Cir.1999); see Augustin v. Yale Club, 2006 WL 2690289, at *22 (S.D.N.Y. Sept. 15, 2006) (finding "infrequent and sporadic" remarks made over the course of five years, "insufficient, as a matter of law, for Plaintiff to maintain a hostile work environment claim"); Trinidad v. New York City Dep't of Corr., 423 F.Supp.2d 151, 167-68 (S.D.N.Y.2006) (finding isolated incidents of supervisors calling plaintiff a "bitch" and making sexual remarks over five years of employment insufficient to support a claim of discriminatory harassment).
Second, the cited incidents — however inappropriate and boorish — are insufficiently severe under the law of this circuit. For example, the parties agree that when Shea mouthed the phrase "blow me," he was not making a sexual advance, but rather intended to be sarcastic. Stodola Decl., Ex B (Husser deposition) ("Husser Dep.") at 386. Indeed, Husser has not suggested, and nothing indicates, that any of the incidents were sexual advances or threats. See Redd, 678 F.3d at 177. Moreover, Husser acknowledged that some of the conduct at issue was not necessarily directed at her: she was never directly called a "girl" nor was Shea's changing in the conference room directed at her. Husser Dep. at 387. Further, while certain facts are in dispute, the record is clear that Husser participated in the sexual banter along with her supervisors. See Stodola Decl., Ex. H (showing an email chain between Shea and Husser where Shea says "ho ho ho" and Husser responds, "who you calling a ho?"). Further, several of the cited incidents could also reasonably be interpreted to be gender-neutral and not necessarily directed at Husser because of her gender — Husser acknowledges that Shea directed some of the comments at issue not just to herself, but also to men. Husser Dep. at 387-88.
Viewed in the aggregate, the conduct of which Husser complains is no more pervasive and severe than conduct in other cases that courts have found insufficient to support liability. See Vito v. Bausch & Lomb Inc., 403 Fed.Appx. 593, 596-97 (2d Cir. 2010) (finding allegations that a supervisor who intentionally touched plaintiff's breasts and made irritating and inappropriate comments failed to show the severity necessary to sustain a hostile work environment claim); Geller v. N. Shore Long Island Jewish Health Sys., 2013 WL 5348313, at *7 (E.D.N.Y. Sept. 23, 2013) (concluding that twenty incidents including comments about plaintiff's breasts, drawing a penis on a whiteboard during a meeting and one inappropriate touching of knee over five year period was insufficient to state a hostile work environment claim); Robinson v. Purcell Const. Corp., 859 F.Supp.2d 245, 255 (N.D.N.Y.2012) (finding that five gender-based comments occurring over a two month period were neither pervasive nor severe). But see Redd, 678 F.3d at 178-79 (finding that a supervisor touching an employee's breasts on three occasions presented a question of fact as to whether the abuse was sufficiently severe to create a hostile work environment, in part because the conduct could be physically threatening because the supervisor "repeatedly made physical contact with-and repeatedly felt-intimate parts of [the plaintiff]'s body"). I therefore respectfully recommend that the court grant the defendants' motion for summary judgment on Husser's claim for hostile work environment under federal and state law.
The hostile work environment claim under the NYCHRL fails for similar reasons. Although a claim under that statute required Husser to show only that she "has been treated less well than other employees because of her gender," see Zambrano-Lamhaouhi, 866 F.Supp.2d at 161 (E.D.N.Y.2011) (citing Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27, 36-39 (2009)), I conclude that her hostile work environment allegations do not satisfy even that more forgiving standard. Instead, as discussed above, the alleged conduct is no more than what prior decisions have categorized as "petty slights and trivial inconveniences." Mihalik, 715 F.3d at 109 (citing Williams, 872 N.Y.S.2d at 41). I therefore respectfully recommend
For the reasons set forth above, I respectfully recommend that the court grant the defendants' motion for summary judgment with respect to the claims for hostile work environment under federal, state, and municipal law, and deny the motion in all other respects.
Any objections to this Report and Recommendation must be filed no later than September 29, 2015. Failure to file objections within this period designating the particular issues to be reviewed waives the right to appeal the district court's order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.2010).
SO ORDERED.
Dated: Brooklyn, New York
Sept. 15, 2015.
Defendants do not appear to move for summary judgment as to this claim, although their memorandum of law in support of their motion states that Defendants are moving to "dismiss the Second Amended Complaint ... in its entirety." (Defs. Mem. in Support of Mot. for Summ. J. 1, 22-25, Docket Entry No 44.) Plaintiff does not address the merits of her FLSA retaliation claim in her opposition, nor did Judge Orenstein address it in the R & R. Even assuming Defendants intended to move as to Plaintiff's EPA retaliation claim, because the Court denies Defendants' motion for summary judgment as to Plaintiff's Title VII and NYSHRL retaliation claims, any such motion is denied for substantially the same reasons.
