Summary
holding that disciplinary charges against an employee may constitute an adverse employment action
Summary of this case from Ayiloge v. City of New YorkOpinion
97 Civ. 9148 (BSJ)
February 13, 2001
Opinion and Order
Introduction
Plaintiff, a former principal of a Manhattan public middle school, has brought an employment discrimination action against defendants contesting her removal from that position under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., New York Executive Law 296, and the New York City Administrative Code 9-107. In addition, plaintiff brings claims for violations of 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and 18 U.S.C. § 241. Plaintiff also brings pendent state law claims for loss of income, damage to her professional standing, and intentional infliction of emotional distress.
Particularly, she alleges that the defendants
(a) discriminated against her on account of her race; (b) conspired, in violation of 18 U.S.C. § 241 and 42 U.S.C. § 1985(3), to deprive her of her civil rights; (c) retaliated against her for exercising her rights to free speech, as granted by the Constitution and by 42 U.S.C. § 1983; (d) deprived her of a property right to which she was entitled pursuant to 42 U.S.C. § 1983, which threatens to deprive her of tenure pension and position; (e) retaliated against her for filing federal and state claims for civil rights violations; (f) treated her differently from similarly situated white principals; (g) caused her to suffer a loss of professional standing, and (h) caused her severe emotional distress.
Pending before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendant's motion for summary judgment is granted in part and denied in part.
Discussion
The defendants move first for summary judgment on Garrett's Title VII claims against defendants Mazza, Romandetto, and Crew on the ground that these defendants cannot be held personally liable for violating Title VII. This motion is granted. In Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), the Second Circuit held that "individual defendants with supervisory control over a plaintiff may not be held liable under Title VII." Tomka, 66 F.3d at 1313. Accordingly, Garrett may not maintain her Title VII claims against these defendants in their individual capacities. Nor may Garrett maintain Title VII claims against Mazza, Romandetta and Crew in their official, as opposed to individual, capacities. See Harrison v. Banque Indosuez, 6 F. Supp.2d 224, 229 (S.D.N.Y. 1998) (quoting Bakal v. Ambassador Constr., 94 Civ. 584 (JSM), 1995 WL 447784 at 4 (S.D.N.Y. July 28, 1995). Accordingly, Mazza, Romandetta and Crew are entitled to summary judgment on plaintiff's Title VII claims.
The defendants do not address the issue of whether the plaintiff's claims under 42 U.S.C. § 1983 and under state law should be dismissed as against the individual defendants. Therefore the defendants' potential liability under § 1983 and state laws survives this portion of defendants' motion for summary judgment.
Although the Title VII employment discrimination claim may proceed against the School Board and the state law employment discrimination claims may proceed against all defendants, the defendants have moved for summary judgment on the ground that plaintiff has failed to establish a prima facie case for those claims.
Garrett alleges that the defendants discriminated against her on the basis of her race in violation of Title VII and New York State and City Human Rights Laws. Our consideration of discrimination claims brought under the state and city human rights laws parallels the analysis used in Title VII claims, and accordingly we consider Garrett's federal and state statutory claims in tandem. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 4 (2d Cir. 2000) (quoting Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n. 1 (2d Cir. 1999) (New York state law); Landwehr v. Grey Adver. Inc., 622 N.Y.S.2d 17, 18 (App.Div. 1st Dep't 1995) (New York City law).
Title VII forbids an employer from intentionally discriminating against an employee because of that employee's "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). A violation of Title VII can be shown by either direct, statistical or circumstantial evidence.See, e.g., Luciano v. Olsten Corp., 110 F.3d 210, 215-16 (2d Cir. 1997). The defendants have proffered a legitimate and non-discriminatory reasons for plaintiff's removal.
Plaintiff contends that defendants' stated reasons for removing her as principal are pretextual, and that an inference of discrimination may be drawn from a number of facts. Although many of plaintiff's contentions are rebutted, this Court cannot say that there are no issues of fact from which a reasonable juror could infer that defendants terminated Garrett for discriminatory reasons. Accordingly, because Garrett has raised a triable issue, summary judgment on plaintiff's Title VII and state law race discrimination claims is denied.
Genuine issues of material fact precluding entry of summary judgment also exist regarding whether the defendants retaliated against Garrett in violation of state and federal law for filing a complaint of discrimination with the New York Division of Human Rights. Both Title VII and § 296 of the New York State Executive Law prohibit an employer from retaliating against an employee for opposing a discriminatory employment practice or for filing a complaint of discrimination. See 42 U.S.C. 2000e-3(a); N Y Exec. Law 296(1)(e). New York courts apply the same analysis for retaliation claims under New York law as is applied under Title VII. See Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 202 n. 2 (S.D.N.Y. 1999).
To establish a prima facie case of retaliation, a plaintiff must show: (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff, and (3) a causal connection between the protected activity and the adverse employment action. See Tomka v. Seiler Corp., 66 F.3d at 1308 (citations omitted).
The defendants do not contest that Garrett engaged in a protected activity known to them when she filed her complaint of discrimination with the New York State Division of Human Rights ("SDHR"). However, they argue that the employment actions complained of, whether adverse or not, were caused solely by her poor performance and were announced before Garrett filed her complaint.
Plaintiff was informed that she would be reassigned from her position as principal of M.S. 118 in a letter from defendant Mazza in June 1997. The letter informed her that she would receive her new assignment as a "Junior High School Principal for the new school year." Plaintiff filed her complaint with the SDHR in July 1997. In August of that year she was reassigned not as a junior high school principal but rather to clerical duties in the District's personnel office. Based on the temporal proximity of that adverse assignment, coming approximately a month after plaintiff filed her complaint, there is a genuine issue of material fact as to whether her assignment to clerical duties rather than as a principal was caused in part by her filing a claim with the SDHR.
Although the disciplinary charges against Garrett and her unsatisfactory rating for the 1997-98 school year came later than her reassignment to clerical duties, there is also a genuine issue of fact as to whether those adverse employment actions were motivated at least in part by Garrett's SDHR filing.
Because genuine issues of material fact remain, defendants' motion for summary judgment on plaintiff's retaliation claims under Title VII and N Y Exec. Law 296(1)(e) is denied.
Defendants have moved for summary judgment on plaintiff's First Amendment Retaliation claim. Plaintiff Garrett alleges that she was removed as principal of M.S. 118 and threatened with "the loss of licensure, pension and tenure" "in retaliation for her speech protected by the First Amendment.
Plaintiff rests her claim on the following alleged facts: (1) She spoke out against the Choice Program, which was implemented in 1993; (2) defendant Mazza was responsible for the Choice Program and must have been aware of her opposition to it, and (3) from 1993 to 1997, plaintiff's school was downsized; plaintiff was given an unsatisfactory rating in 1996-97, and plaintiff was reassigned in 1997.
Circumstantial evidence of retaliation may be found when defendants are aware that plaintiff has engaged in protected speech and defendants' challenged behavior closely follows that protected speech. See Housing Works, Inc. v. City of New York, 72 F. Supp.2d 402, 422-23 (S.D.N.Y. 1999).
Plaintiff's allegations have established disputed issues of fact as to the existence of retaliatory motive. Plaintiff has established protected speech of which the defendants were aware and the causal connection between her speech and her reassignment remains disputed. Accordingly, defendants' motion for summary judgment on plaintiff's First Amendment retaliation claim is denied.
Defendants have moved for summary judgment on plaintiff's conspiracy claims under 18 U.S.C. § 241 and 42 U.S.C. § 1985(3) Plaintiff has alleged a criminal conspiracy to deprive plaintiff of her constitutional rights, allegedly involving all of the defendants, either jointly or as between the individual defendants and other actors. The federal criminal conspiracy statute, 18 U.S.C. § 241, does not provide for a private right of action. See Powers v. Karen, 768 F. Supp. 46, 51 (E.D.N Y 1991), aff'd, 963 F.2d 1522 (2d Cir. 1992); John's Insulation, Inc. v. Siska Constr. Co., Inc., 774 F. Supp. 156, 163 (S.D.N Y 1991). Accordingly, Garrett, a private individual, may not maintain a claim under § 241, and defendants' motion for summary judgment on that claim is granted.
Nor can Garrett state a cause of action under 42 U.S.C. § 1985(3). The statute provides no substantive rights. Rather, it "provides a remedy for violation of the rights it designates." Great American Federal Savings Loan Assn v. Novotny, 442 U.S. 366, 372 (1979). Plaintiff alleges that defendants conspired to deprive her of rights granted under both Title VII and state Human Rights law. In Novotny, the Court held that the deprivation of a right created by Title VII cannot provide the legal basis for a cause of action under § 1985(3). See id. at 372. The Court stated:
If a violation of Title VII could be asserted through § 1985(3), a complainant could avoid most if not all [the] detailed and specific provisions of [Title VII]. . . . Perhaps most importantly, the claimant could completely bypass the administrative process, which plays such a crucial role in the scheme established by Congress in Title VII.Id. at 375-76.
Because Garrett claims that the aim of defendants' conspiracy was to discriminate against her on the basis of race in making employment decisions in violation of Title VII, she cannot assert separate claims for the same conduct under § 1985(3). Accordingly, the § 1985(3) claims based on Title VII are dismissed as to all defendants.
Plaintiff also asserts a § 1985(3) conspiracy claim to violate New York State law, presumably New York Human Rights Law § 296 of the Executive Law. As discussed above in the context of her Title VII discrimination claim, she has established material issues of fact relating to the question of whether defendants' actions were motivated by race animus. Accordingly, defendants' motion for summary judgment on plaintiff's § 1985(3) claims for conspiracy to violate New York Human Rights Law is denied.
Defendants have moved for summary judgment on plaintiff's due process claim. Plaintiff, a tenured principal, claims that she was denied a property interest without due process of law when she was "suspended from her duties" as principal of M.S. 118 and was subsequently reassigned to various clerical positions within the school district. To state a Fourteenth Amendment due process claim, a plaintiff must show that she had a legitimate property interest, and that the defendants deprived her of that interest without affording her due process.
In general, the nature and contours of a specific property interest are defined by some source independent of the Constitution — most often state law. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972). As theRoth Court declared: "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. . . . He must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577. Garrett's reassignment to clerical duties did not deprive her of a protected property interest because she maintained her title and salary as principal. The non-economic injury suffered by Garrett is traditionally an insufficient basis for a claim of deprivation of a property interest. See Kane v. Krebser, 44 F. Supp.2d 542, 549 (S.D.N.Y. 1999). Moreover, denials of a particular work assignment concern interests which are not entitled to the protections afforded by the Due Process Clause. See Ezekwo v. New York City Health Hosp. Corp., 940 F.2d 775, 783 (2d Cir. 1991). Accordingly, the defendants' denial of Garrett's desired work assignment at M.S. 118 did not deprive her of a property interest in violation of the Fourteenth Amendment.
Furthermore, even if Garrett did have a property interest in her assignment to M.S. 118, she was afforded due process before she was reassigned. After Mazza held a conference with her in which she was allowed to discuss her performance, he gave Garrett notice in July that she would be reassigned in August. Garrett sought relief through the school board's grievance procedures but then voluntarily postponed her hearing. Having been provided with notice and an opportunity to be heard, Garrett cannot now claim that she was denied due process because she chose to forego process available to her. See Aronson v. Hall, 707 F.2d 693, 694 (affirming dismissal of due process claim where plaintiff eschewed available remedies). Defendants' motion for summary judgment on plaintiff's due process property claim is accordingly granted.
Plaintiff has moved to amend her complaint for a third time to add a claim for an unconstitutional deprivation of a liberty interest in violation of her Fourteenth Amendment due process rights. Rule 15(a) of the Federal Rules of Civil Procedure states that "leave to amend shall be freely granted when justice so requires." However, a motion for leave to amend can be denied if there is "undue delay, bad faith or dilatory motive on the part of the moving party and futility of amendment."
Amendment in this case would be futile. Garrett cannot articulate a protectible liberty interest of which the defendants have unconstitutionally deprived her. Although the Fourteenth Amendment's Due Process Clause "guarantees more than fair process," Washington v. Glucksberg, 521 U.S. 702, 719 (1997), it only protects certain fundamental liberty interests.
The Court indicated in Board of Regents v. Roth that when a state employee is discharged two constitutionally protected liberty interests might be implicated. See 408 U.S. 564 at 573-74. First is the individual's interest in his or her "`good name, reputation, honor, or integrity.'" Id. at 573 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). Second is the individual's interest in avoiding "a stigma or other disability" that forecloses other employment opportunities Id.
In order to be stigmatized enough to be deprived of liberty, a dismissed employee must be accused of something more than unsatisfactory job performance. See Brandt v. Board of Coop. Educ. Servs., Third Supervisory Dist., 820 F.2d 41 (2d Cir. 1987). A dismissal must be accompanied by an accusation of dishonesty, illegality or immorality in order to meet Roth's requirement that the employee be stigmatized. See Capers v. Long Island R.R., 429 F. Supp. 1359, 1368 (S.D.N.Y. 1977); see also Watson v. Sexton, 755 F. Supp. 583, 592 (S.D.N.Y. 1991) (accusations of drug use are sufficiently stigmatizing, but accusations of abuse of company sick time and lateness policy are insufficient); Nauta v. City of Poughkeepsie, 610 F. Supp. 980 (S.D.N.Y. 1985) (accusations of inefficiency and incompetence are not sufficient)
Therefore plaintiff must show that she was dismissed amid allegations of dishonest, illegal or immoral conduct in order to be stigmatized enough to be unconstitutionally deprived of liberty. Plaintiff is required to present facts that would support such a showing for her Fourteenth Amendment claim to survive a summary judgment motion. See Brito v. Diamond, 796 F. Supp. 764, 757-58 (S.D.N.Y. 1992). Since these issues are well within the scope of the discovery which has already been conducted and plaintiff has offered no evidence that defendants have premised her reassignment on anything but generally unsatisfactory performance of her duties, amending her complaint to include a Fourteenth Amendment due process claim that she has been stigmatized by the defendants would be futile. In light of the additional factors of a delay of two years without any justification and the resultant prejudice to the defendants, leave to amend the complaint is hereby denied.
Plaintiff's remaining claim alleges that as a result of the defendants' conduct, she has suffered severe emotional distress. Under New York law, a claim for intentional infliction of emotional distress requires a showing of: (1) Extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. See Howell v. New York Post Co., 612 N.E.2d 699, 702 (N.Y.Ct.App. 1993). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id.; see also Mariani v. Consolidated Edison Co., 172 F.3d 38 (2d Cir. 1998). Whether conduct is sufficiently atrocious as to permit recovery is a matter for the court to determine in the first instance.See Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999).
The court cannot find a cognizable cause of action in the seventh claim of plaintiff's complaint. The claim alleges loss of personal and professional standing among Garrett's friends and colleagues. Although this may allege damages to Garrett from defendants' actions, standing alone it does not constitute a cause of action.
This Court finds that plaintiff's allegations of harm arising from defendants' conduct fall far short of establishing a claim for intentional infliction of emotional distress. See Stuto, 164 F.3d at 827. The plaintiff has offered insufficient evidence that she suffered severe emotional distress. Accordingly, defendants' motion for summary judgment on plaintiff's emotional distress claims is granted.
Conclusion
For the foregoing reasons, defendants' motion for summary judgment is granted as to all defendants on (1) plaintiff's civil rights conspiracy claims based on violations of Title VII; (2) plaintiff's due process claims, and (3) plaintiff's claims of loss of standing and emotional distress. Defendants' motion for summary judgment on plaintiff's Title VII employment discrimination and retaliation claims is hereby granted as to Mazza, Romandetto and Crew in their individual and official capacities, and is otherwise denied. Defendants' motion for summary judgment as to plaintiff's state law discrimination and retaliation claims is denied as to all defendants. The parties are directed to submit a joint pretrial order no later than March 13, 2001.