Summary
granting summary judgment when the alleged complaint was "bereft of any talk about discrimination at all and thus can not be deemed a protected activity."
Summary of this case from Collins v. Cohen Pontani Lieberman PavaneOpinion
05 Civ. 2164 (TPG).
August 16, 2007
OPINION
This action is brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and alleges racial discrimination. Plaintiff Sue Ellen Moncrief brings this actionpro se against her former employer, the New York Public Library.
The allegedly discriminatory conduct consisted of the Library's failure to promote, wrongful discharge, and retaliation. Plaintiff also alleges that her employer committed theft of her personal property.
Defendants have moved for summary judgment on all claims pursuant to Fed.R.Civ.P. 56(b). The motion is granted.
Plaintiff's Employment History
The following facts are undisputed. Plaintiff was hired as an information assistant at the New York Public Library in 1989. At the time of her termination on November 3, 2003, plaintiff was employed at the New York Public Library for the Performing Arts ("LPA"), which is a branch of the Library. Through a series of transfers and promotions, plaintiff had attained the position of "Librarian II" in the Rodgers and Hammerstein Archives section of the LPA. Her direct supervisors were Sara Velez, Donald McCormick and David Brown.
Plaintiff's Allegations
The complaint alleges that the discrimination began in July 2000 and continued until plaintiff's November 2003 termination. However, the complaint does not specifically allege any discriminatory event occurring in July 2000. Defendants assert that plaintiff was issued a disciplinary memorandum in July 2000 by her supervisor, Velez.
The disciplinary memorandum, issued July 5, 2000 and entitled "Unsatisfactory Job Performance," stated that plaintiff' failed to meet the expected rate of task completion, that she used the office telephone for personal calls without permission, and that she was observed away from her work station for extended periods of time without informing her supervisors that she would be away. In addition, the memorandum warned plaintiff that further disciplinary action would be instituted unless she achieved an "immediate and sustained" improvement in her job performance. Although the complaint does not allege that the issuance of the memorandum constituted discriminatory behavior, plaintiff does assert as much in her opposition to this motion.
On April 9, 2002, plaintiff authored an email which she says was at the request of Jacqueline Davis, the Executive Director of the Library. Plaintiff alleges that the email was then released to two of her direct supervisors, Donald McCormick and Sara Velez.
As summarized in the complaint, the email criticized an LPA Director named Heike Kordish for hiring an unqualified friend or family member for an internally advertised position, when there were a number of qualified internal candidates, including plaintiff. The email then criticized McCormick's communications to plaintiff regarding this hiring. Finally, the email stated that the criticized conduct was a "continuing pattern over the years."
A copy of the email is attached to plaintiff's opposition to the motion to dismiss. The contents of the email differ somewhat from plaintiff's summary in the complaint. In the actual email, plaintiff complains that she had twice been skipped over for jobs historically given to employees in her position. It also complains about some specific conduct including improper alteration of plaintiff's time sheets, denials of her requests to take leave, and chronic misspellings of plaintiff's name in company documents. It makes no mention of plaintiff's race nor does it allege discrimination of any kind. In fact, the email attributes this conduct to a pattern of employee treatment that caused many librarians to leave their positions.
The complaint alleges that, following the distribution of the email, plaintiff "was labeled `intolerant' and suffered a backlash from a number of staff members," some of whom plaintiff had never met. Plaintiff also alleges that this backlash included the institution of disciplinary proceedings against plaintiff by McCormick and Velez.
In opposition to this motion, plaintiff has attached what appears to be a portion of an affidavit that was part of her EEOC charge of discrimination (Pl.'s Mem. Ex. E). The relevant allegations contained therein are summarized as follows. Plaintiff is the only black individual to achieve the professional title of Librarian II at the LPA. In July 2000, she made an application and interviewed for a "lateral position" in her department. That position, when it became available, had historically gone to the person holding plaintiff's position. Plaintiff's application was denied after her supervisor, Sara Velez, sent a memorandum to Human Resources. The memorandum is not attached, and no specific contents are alleged. When plaintiff "raised question, ill treatment followed." The affidavit asserts that plaintiff applied for new jobs within the Library in 2001, 2002 and 2003 and interviewed for each of them. After each interview, Sara Velez sent a memorandum to Human Resources and, plaintiff alleges, each of plaintiff's applications were rejected with the exception of the 2003 application, which was withdrawn. Plaintiff alleges that this process constituted a pattern of "ill treatment" and harassment. Plaintiff further alleges that the ill treatment also included being "targeted for heavy discipline in front of a field of 200 other staff members" and the initiation of disciplinary proceedings against her.
Plaintiff has attached yet another exhibit to her opposition papers that also appears to be a part of her EEOC charge, but it is uncertain if in fact it was included in the charge. That exhibit is a color-coded timeline which attempts to detail the history of plaintiff's unsuccessful job applications as well as her supervisors' "ill treatment." As regards the history of her job applications, this exhibit contradicts the affidavit to the EEOC just described above. The timeline asserts that plaintiff applied for jobs in June 2000, August 2001, and September 2002, and August 2003 and was passed over for the first job in August 2000, and for the second job in April 2002. The timeline also asserts that plaintiff withdrew the two job applications she made in 2002 and 2003. Both plaintiff and defendants have supplied copies of correspondence memorializing the job applications and eventual denials.
Defendants assert that plaintiff's job performance deteriorated so much between July 2000 and May 2003 that they had to send three formal disciplinary memoranda and eventually hold a formal disciplinary hearing in May 2003. In support of these assertions, defendants have provided copies of numerous emails they sent to plaintiff between July 2000 and April 2003 detailing her poor job performance. The memoranda discussed plaintiff's failure to meet performance expectations, her unauthorized email and internet usage, her failure to work at her assigned work station, and her repeated last-minute requests for leave. Defendants have also provided copies of the three disciplinary memoranda dated July 5, 2000, August 30, 2002, and December 12, 2002, respectively. The December 2002 memorandum indicates that it was a final warning before the institution of further disciplinary action. On March 19, 2003, defendants instituted such action. On May 8, 2003 there was a disciplinary hearing which resulted in plaintiff's one-week suspension without pay. Representatives from the Library, the Union and plaintiff attended the hearing.
Defendants allege that the reason they ultimately terminated plaintiff on November 3, 2003 was a security breach committed by plaintiff. The breach occurred on October 16, 2003 and, according to defendants, was borne out of the denials of plaintiff's repeated requests to change her assigned workstation (allegedly due to the excessive flatulence of a co-worker).
The asserted facts of the security breach are as follows. At approximately 6:30 p.m., plaintiff allowed two unidentified men without official identification into a secured, staff-only area of the library and led them to the area where she was assigned to work. She then left the men alone in that area for about one hour while returning briefly to the area three or four times. During that time, plaintiff had the men move her co-worker's belongings from a workstation and had her own belongings placed there. Defendants have provided still images from a security video camera detailing this activity. Five days later, defendants suspended plaintiff on October 21, 2003 and instituted a disciplinary hearing which was held on October 31, 2003. It is unclear whether plaintiff attended the hearing or not, but plaintiff contends that she did not attend. As a result of the hearing, plaintiff's employment was terminated.
Plaintiff does not deny that she permitted the men to enter the area or that she left them alone or that she directed them to replace her co-worker's belongings with her own. She does disagree, however, that the activity constituted a security breach. Apparently, this is so because, although she permitted them to do the relocation, she denies authorizing it in the first place.
Plaintiff does not allege any specific facts regarding the final disciplinary hearing or her actual termination. The complaint does, however, allege that the termination was chiefly an attempt by defendants "to cover up the harassment I endured as a result of making an observation about discrimination." The court presumes that the observation referred to above relates to the April 9, 2002 email.
Discussion
Summary judgment is appropriate only when the submissions of the parties, taken together, "show 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." Fed.R.Civ.P. 56(c). The moving party has the burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once a properly supported motion for summary judgment has been made, the burden shifts to the non-moving party to put forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). As Rule 56(e) states, mere allegations or denials of the adverse party's pleading are insufficient to oppose such a motion successfully. The nonmoving party must do more than show that there is "some metaphysical doubt" as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party may not rest on its pleadings and rely on mere allegations, denials, conclusory statements, or conjecture to create a genuine issue for trial. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-67 (U.S. 1986); Trinidad v. N.Y. City Dep't of Corr., 423 F. Supp. 2d 151, 161 (S.D.N.Y. 2006).
Failure to Promote
Plaintiff's claim for failure to promote is time-barred and must be dismissed. 42 U.S.C. § 2000e-5(e)(1) "specifies with precision" the prerequisites that a plaintiff must satisfy before filing suit. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (U.S. 1974). Plaintiff was required to file her charge with the Equal Employment Opportunity Commission within 300 days of the allegedly discriminatory employment practice. 42 U.S.C. § 2000e-5(e)(1). Failure to file the charge of discrimination within this time period is not an absolute bar, as the court may equitably toll the statute. AMTRAK v. Morgan, 536 U.S. 101, 109 (U.S. 2002)
As to the timing of the alleged failures to promote, as detailed above, plaintiff's opposition papers assert that she applied for multiple jobs beginning in 1989 and continuing through 2003. They also assert that she withdrew the applications for both of the two jobs she applied for in 2002 and 2003. The April 9, 2002 email referenced in the complaint complains about a failure to promote. It appears from plaintiff's opposition papers that the failure to promote complained of in the April 9, 2002 email relates to an August 2001 application and that plaintiff was passed over for that position sometime in April 2002.
The withdrawn job applications may not be considered in plaintiff's failure to promote claim. Therefore, the most recent date the court can reasonably use for determining whether her claim is time-barred is April 2002. This date is substantially more than 300 days prior to the date plaintiff filed her charge of discrimination with the EEOC, May 23, 2004.
Finally, although the court has the power to toll the statute equitably, the Supreme Court has stated that "strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." AMTRAK, 536 U.S. at 108. Plaintiff has failed to articulate any reason why the court should toll the statute in this case. The failure to promote claim is time-barred and defendant is entitled to summary judgment dismissing it.
Wrongful Termination
In evaluating claims of wrongful termination based on race discrimination, the court applies the burden-shifting analysis prescribed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). First, plaintiff must make out a prima facie case of discrimination by showing that 1) she is a member of a protected class; 2) is qualified for her position; 3) suffered an adverse employment action; and 4) the circumstances of the adverse action give rise to an inference of discrimination. Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000). Plaintiff's burden to make out a prima facie case is minimal.Fisher v. Vassar College, 114 F.3d 1332, 1340 n. 7 (2d Cir. 1997).
The first three prongs of this inquiry are not in dispute. The parties do dispute whether there is a basis for an inference of discrimination. Plaintiff refers to her EEOC charge of discrimination in making the assertion that her termination was defendants' attempt to cover up the harassment she endured as a result of sending the email. While this allegation is thin, it is an allegation nonetheless.
Therefore, while it is questionable whether plaintiff has even met her initial burden of proving a prima facie case, the court gives plaintiff the benefit of the doubt on the basis of her pro se status. Since plaintiff has presumably met that initial burden, a rebuttable presumption of discrimination arises and the burden then shifts to defendants to articulate a legitimate, non-discriminatory reason for the challenged employment action. Burdine, 450 U.S. at 254. This burden is one of production, not persuasion; it involves no assessment of credibility. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (U.S. 2000).
Defendants have articulated the October 16, 2003 security breach as a legitimate, non-discriminatory reason for plaintiff's termination, as already described above in detail.
The burden now shifts to plaintiff who must show defendants' articulated reason was a mere pretext for actual discrimination.Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). In order to satisfy her burden, plaintiff must produce sufficient evidence to support a rational finding that defendant's articulated reasons were false and, more likely than not, discrimination was the real reason for the termination. See, Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). The question the court must answer is whether plaintiff's evidence, taken as a whole, supports a sufficient rational inference of discrimination. Weinstock, 224 F.3d at 42.
Plaintiff has failed in this regard. Plaintiff's papers are largely conclusory and difficult to read. She has offered nothing to rebut the security breach as a reason for her termination. Accordingly, defendants are entitled to summary judgment dismissing this claim.
Retaliation
In order to make out a case of retaliation, plaintiff must show that she participated in a protected activity which was met with retaliation. See, Thomas v. iStar Financial, Inc., 438 F. Supp. 2d 348, 364 (S.D.N.Y. 2006). Protected activities under Title VII include employee complaints about employer discrimination. 42 U.S.C. § 2000e-2(a)(1) and 3(a).
Plaintiff appears to claim that the protected activity was the sending of the email. Unfortunately, the email is bereft of any talk about discrimination at all and thus can not be deemed a protected activity.
Plaintiff argues that there was "no question" that the Library understood that plaintiff was complaining about racial discrimination. In support she points to the fact after she sent the email, the Library hired a consultant to discuss racial discrimination. This allegation is ephemeral and the court gives it no weight.
The April 2002 email did not constitute protected activity within the meaning of Title VII. Therefore, defendants are entitled to summary judgment on plaintiff's retaliation claim because plaintiff has failed to make out a prima facie case.
Theft
Plaintiff alleges that the Library engaged in "theft" of her personal property. The complaint alleges no facts in support of this allegation. Therefore, there is nothing for the court to construe in her favor as a cognizable cause of action.
Plaintiff's claim for theft of her personal property is thus dismissed.
Motion to Exclude
On December 15, 2006, plaintiff filed a motion to exclude defendants' reply memorandum as untimely. The court did not refer to the reply memorandum in the course of passing upon the instant motion. Accordingly, plaintiff's motion to exclude is denied as moot.
CONCLUSION
Defendants' motion for summary judgment is granted and the action is dismissed. Plaintiff's motion to exclude is denied as moot.
SO ORDERED.