DENISE COTE, District Judge.
Plaintiff Janice Mooney, an employee of the New York City Department of Sanitation ("DSNY"), an agency of the City of New York (the "City"), alleges that two of her supervisors, defendants Paul Visconti and Javier Lojan, discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000a
The following facts are undisputed or taken in the light most favorable to Mooney, the non-moving party, unless otherwise noted. Mooney began working for DSNY as a Sanitation Worker in the year 2000. Mooney was promoted through various positions and ultimately to Deputy Borough Chief in December 2012. As a Deputy Chief, Mooney's duties involved overseeing a number of DSNY districts. After her promotion to Deputy Borough Chief, Mooney was initially assigned to the Bronx.
In January 2014, Mooney was transferred to the Queens West Borough, where her supervisor was Borough Chief Thomas Albano. In April 2015, Albano made Mooney the Executive Officer ("XO") for Queens West. The Queens West XO is the "right hand" of the Queens West Borough Chief. Becoming XO is not a promotion from Deputy Borough Chief, and the XO position does not carry any increased compensation.
In June 2015, Lojan became the Queens West Borough Chief and thus Mooney's new supervisor. Mooney continued to serve as Queens West XO until February 2016, at which point Lojan replaced her with a male Deputy Borough Chief.
In November 2016, Lojan told Mooney that she needed to remove her belongings from a certain storage room on the DSNY Queens West premises. During Albano's tenure as Queens West Borough Chief, he had permitted Mooney to use this storage room, which had a sink but no shower or bathroom. The room contained a locker, and Mooney had placed a futon in the room as well. Separately, Mooney had access to a bathroom down the hall and to a locker room at Queens West that had a shower and bathroom, although it was primarily a locker room for female mechanics and was located about half a block from and five floors below the storage room. Lojan told Mooney that the reason she needed to vacate the storage room was that he needed it "for himself." Lojan also offered Mooney the use of a different storage room that was one door down the hall from the original. Mooney was unsatisfied with the new room because the ceiling was falling down, there was debris on the floor, and the overhead lights did not work. But she never asked Lojan or anyone else at the Borough to address these issues.
On February 13, 2017, the DSNY Chief of Bureau Operations sent a Memorandum concerning staffing plans for a snowstorm that was anticipated the following day. February 14 was Mooney's regularly scheduled day off ("RDO"). Lojan did not ask Mooney to work on February 14, and consequently she could not earn overtime on that day. Lojan was able to fulfill the staffing requirements of the February 13 Memorandum with the three Deputy Chiefs who were already scheduled to work on February 14, and there was no administrative need for Mooney or any other Deputy Chief to work on their RDO. Lojan afforded Mooney opportunities to work overtime on her RDO on other occasions both before and after February 14, 2017.
Later in February 2017, Mooney received a DS-997 letter of warning for failing to accurately complete an Unusual Occurrence Report concerning a vehicle with a missing tire. On September 12, 2017, Mooney received another DS-997 (the "September 2017 DS-997") for arriving late to a work shift. On the September 2017 DS-997, Mooney agreed that she was not on time for the shift but wrote that she "[found] this degree of reprimand unwarranted." She added, "Again, I am not being treated in the same manner as my male Co-Workers."
On September 18, 2017, Mooney emailed Lojan asking that she be permitted to take three weeks of leave, spanning late October and early November. For approximately nine months, Mooney had been aware that she was scheduled to provide night coverage during that third week.
In April 2018, the DSNY First Deputy Commissioner reassigned twenty Deputy Chiefs to new locations. Among the twenty reassignments, Mooney and a male Deputy Chief were reassigned from Queens West to Queens East.
This suit was filed on January 12, 2018. The defendants' motion to dismiss was partially granted on September 12, 2018.
The following claims remain in the case: (1) sex-discrimination claims concerning Mooney's removal as XO, under § 1983, the NYSHRL, and the NYCHRL; (2) sex-discrimination claims concerning Mooney's removal from the storage room, under Title VII, § 1983, the NYSHRL, and the NYCHRL; (3) sex-discrimination claims concerning Mooney's denial of the opportunity to earn overtime pay on February 14, 2017, under Title VII, § 1983, the NYSHRL, and the NYCHRL; (4) retaliation claims concerning the September 2017 DS-997, under Title VII, § 1983, the NYSHRL, and the NYCHRL; (5) retaliation claims concerning the denial of Mooney's request for a third week off in the fall of 2017 and the requirement that she work night relief that week, under Title VII, § 1983, the NYSHRL, and the NYCHRL; and (6) retaliation claims concerning Mooney's transfer to Queens East, under Title VII, the NYSHRL, and the NYCHRL.
Following discovery, on May 9, 2019, defendants moved for summary judgment. The motion became fully submitted on July 3, 2019.
A motion for summary judgment may not be granted unless all of the submissions taken together "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Once the moving party has cited evidence showing that the non-movant's claims or affirmative defenses cannot be sustained, the party opposing summary judgment "must set forth specific facts demonstrating that there is a genuine issue for trial."
In the context of employment discrimination, "an extra measure of caution is merited" in granting summary judgment because "direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions."
Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII claims are evaluated under the burden-shifting framework established in
First, the "plaintiff must establish a
In opposing a motion for summary judgment, when the defendant has "offer[ed] a legitimate, nondiscriminatory reason for the adverse employment action, the burden is on the plaintiff to point to evidence that reasonably supports a finding of prohibited discrimination; otherwise, the defendant is entitled to summary judgment."
At this third step of the
For purposes of a discrimination claim, an adverse employment action is "a materially adverse change in the terms and conditions of employment."
Summary judgment is granted as to Mooney's § 1983 and NYSHRL claims concerning her removal from the XO position. Defendants first contend that removal from the XO position was not a materially adverse change in the conditions of employment because the position was not a promotion or a prerequisite for promotion, and carried no increased compensation. But a "demotion evidenced by . . . a less distinguished title" may be an adverse employment action.
"Executive Officer" is self-evidently a distinguished title, which Mooney was deprived of. Also, it is undisputed that the XO was the right hand of the Borough Chief. Mooney testified at her deposition that the XO is responsible for preparing a daily report about the "number of trucks and manpower [the borough] need[s] to function daily." Despite the fact that Mooney did not characterize becoming XO as a "promotion," a reasonable jury could find that removal from this position of responsibility had a materially negative impact on Mooney's career.
Defendants also argue that Mooney has failed to raise a genuine dispute about whether her sex was a motivating factor in the decision to remove her as XO. They are correct.
Other than the fact that she was replaced by a male, Mooney has not offered any evidence from which a jury could conclude that Lojan's decision was motivated by discriminatory intent. It is not surprising that a Borough Chief would want to select his or her own XO. Indeed, in her deposition, Mooney testified that Lojan said to her at the time of her removal, "[Y]ou weren't my first choice[;] I should have done it when I got here." Mooney admits she does not actually know why Lojan chose to replace her with a male colleague. The only other evidence that Mooney offers from which to infer discriminatory intent is the observation that Lojan had more collegial relationships with the male Deputy Chiefs. Mooney did not explain what she meant, however, by that or give examples of behavior or instances of favoritism to support her conclusion. She explained only that "when he dealt with me it was more or less cut and dry." The fact that Lojan selected another Deputy Chief who was a male to serve as his XO is insufficient to support a finding that Lojan intended to discriminate against Mooney because of her gender.
Direct evidence of discriminatory intent is rarely available, of course, and thus the Second Circuit has recognized a "need for caution about granting summary judgment to an employer in a discrimination case where the merits turn on a dispute as to the employer's intent."
No reasonable jury could find that replacement of one storage room with another was an adverse employment action. While the new storage room did not have a sink, plaintiff admits that there was a bathroom just down the hall. Although Mooney testified that there were issues with the new storage room, she never asked Lojan, or anyone at Queens West, to address those issues, further suggesting that the change in storage rooms was immaterial. Indeed, in her opposition to this motion plaintiff makes no response to defendants' argument that removal from the storage room was not an adverse employment action.
Also, no reasonable jury could conclude that Mooney's sex was a motivating factor in the decision to have her change storage rooms. Mooney asserts that Lojan told her that he needed the room "for himself" and "set it up" with an air mattress and a couch.
Summary judgment is appropriate on plaintiff's third remaining claim for similar reasons. First, not being asked to work on one's previously scheduled day off is not a materially adverse change in the conditions of employment — even when it entails a lost opportunity to earn overtime compensation for that day. It is undisputed that February 14, 2017 was Mooney's regularly scheduled day off. And it is undisputed that Lojan afforded her opportunities to earn overtime on other RDOs before and after February 14. Adherence to a single day's schedule cannot be described as a material change in the conditions of employment.
Nor is there sufficient evidence to raise a genuine dispute about whether Lojan's stated reason for the decision was pretextual. It is undisputed that there were three other Deputy Chiefs scheduled to work on February 14.
The sole piece of evidence that Mooney offers to support a finding of discriminatory motive is her testimony that, later in the week, she saw an email from Lojan to a male Deputy Chief requesting that he work on his RDO on some other day than February 14. Accepting plaintiff's assertion that a male Deputy Chief was given the opportunity to work on his RDO,
NYCHRL claims must be analyzed separately from claims under the NYSHRL and Title VII.
The NYCHRL, however, still contains a causation requirement. The plaintiff must prove that "she has been treated less well than other employees because of her gender."
If the defendant has offered legitimate reasons for the challenged conduct, then summary judgment on an NYCHRL claim "is appropriate if no reasonable jury could conclude either that the defendant's reasons were pretextual, or that the defendant's stated reasons were not its sole basis for taking action, and that its conduct was based at least in part on discrimination."
Summary judgment is granted for defendants on Mooney's NYCHRL discrimination claims because there is insufficient evidence for a reasonable jury to find that she was treated less well because of her sex. The reasons that there is insufficient evidence are the same as those discussed for Mooney's federal and state claims.
Title VII makes it unlawful for an employer "to discriminate against any employee or applicant because that individual opposed any practice made unlawful by Title VII or made a charge, testified, assisted, or participated in a Title VII investigation or proceeding."
The Supreme Court has explained that a broad interpretation of Title VII's retaliation provision furthers the overall purpose of the statute: "Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. . . . Interpreting the antiretaliation provision to provide broad protection from retaliation helps ensure the cooperation upon which accomplishment of the Act's primary objective depends."
Courts in this Circuit analyze Title VII and NYSHRL retaliation claims — like discrimination claims — under the burden-shifting standard set out in
For a plaintiff to establish that she was engaged in protected activity, the first element of a
An adverse employment action is the third element of a
A plaintiff may demonstrate the fourth element of a
Once the employer has articulated a legitimate, non-retaliatory reason for the adverse employment action, however, temporal proximity alone is insufficient to show pretext.
None of plaintiff's retaliation claims survive summary judgment. Plaintiff asserts that she engaged in three instances of protected activity relevant here: (1) In February 2017 she wrote a comment on her 2016 evaluation, indicating that she was not being treated the same as her male co-workers; (2) she wrote a similar comment on the September 2017 DS-997; and (3) in January 2018 she filed this lawsuit. Plaintiff argues that she suffered three instances of retaliation for these activities: (1) Lojan issued her the September 2017 DS-997 for arriving late to work; (2) Lojan denied her request to take a third week of leave spanning October and November 2017; and (3) she was transferred from Queens West to Queens East in April 2018. For all three alleged retaliatory actions, no reasonable jury could conclude that a retaliatory motive was the but-for cause. Also, no reasonable jury could conclude that the denial of a third week of leave constituted an adverse employment action.
The only protected activity that Mooney alleges she engaged in prior to the September 2017 DS-997 is the comment that she wrote on the evaluation she received in February 2017. The six-month gap between the protected activity and alleged retaliation is sufficiently long that a reasonable jury could not infer the required causation.
Plaintiff appears to argue that summary judgment should not be granted because Lojan did not report the complaint she wrote on the September 2017 DS-997 to the DSNY Equal Employment Opportunity Office ("EEO"), as he was required to do. Even if Lojan handled Mooney's complaint improperly, that does not support an inference that his issuance of the September 2017 DS-997 itself was discriminatory or that his motives for issuing the letter of warning were pretextual.
No reasonable jury could find that denial of a third week of leave to Mooney in November 2017 was an adverse employment action. It is undisputed that Mooney was made aware of the night relief schedule months earlier, in either December 2016 or January 2017. Being asked to work when one is scheduled to work would not dissuade a reasonable worker from engaging in protected activity under Title VII. That is especially true when the worker has been granted two weeks of leave prior to the week of scheduled work.
Also, Mooney has not raised a genuine dispute about whether there was a causal connection between her comment on the September 2017 DS-997 and the denial of this third week of leave in October and November 2017. It is undisputed that Lojan had a legitimate, non-retaliatory reason for denying the week of leave,
Mooney has also failed to raise a genuine dispute as to causation for her transfer to Queens East. It is true that she filed this suit in January 2018, and it is undisputed that she was transferred in April 2018. But defendants have offered a legitimate, non-retaliatory reason for the transfer,
The NYCHRL also makes it unlawful to retaliate against an employee for protected activity. "[T]o prevail on a retaliation claim under the NYCHRL, the plaintiff must show that she took an action opposing her employer's discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action."
Claims under the NYCHRL must be analyzed "separately and independently from any federal and state law claims, construing the NYCHRL's provisions broadly in favor of discrimination plaintiffs, to the extent such a construction is reasonably possible."
For the reasons discussed above, the defendants' motion for summary judgment should also be granted as to Mooney's NYCHRL retaliation claims. Under the NYCHRL, plaintiffs must still establish a causal connection between the adverse employment action and the protected activity. Mooney has failed to present evidence sufficient to permit a rational factfinder to find such a connection. Also for the reasons discussed above, denial of a third week of leave is not reasonably likely to deter an employee from taking action opposing discrimination.
The defendants' May 9, 2019 motion for summary judgment is granted.