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April 13, 1999


The opinion of the court was delivered by: Robert L. Carter, District Judge.


Plaintiff Lori A. Meckenberg ("Meckenberg") brings this action against defendants New York City Off-Track Betting ("OTB"), Hazel Dukes ("Dukes"), Nicholas Romano ("Romano"), and Robert Palumbo ("Palumbo"), asserting claims under Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983, and common law breach of contract and intentional infliction of emotional distress. Meckenberg alleges that defendants discriminated against her on the basis of gender and race during her employment with OTB, that she was subject to a hostile work environment, and that defendants retaliated against her when she complained of the discriminatory treatment. Now before the court is defendants' motion for summary judgment, pursuant to Rule 56, F.R. Civ. P., on all of plaintiff's claims.


Meckenberg, a white female, began her employment with OTB as a secretary in November, 1978. She subsequently applied for and received a position as a Racing Data Coordinator in the newly created Operations Center ("OPCEN") in June, 1980. During her stint as a Racing Data Corrdinator, Meckenberg expressed interest in obtaining a supervisory position within OPCEN. However, she claims that she was passed over for promotion on two occasions. On one occasion, Meckenberg asserts that she was told by Jeff Goldberg, an OTB program director, that she would be bypassed in favor of an African-American woman because the "woman was black and [Goldberg] didn't want her to go running to the NAACP." (Compl. ¶ 7). On another occasion, Meckenberg was allegedly told by Ray Sancho ("Sancho"), also an OTB director, that she would not received the position because she had "pissed off a couple of Vice Presidents [at OTB]." (Compl. ¶ 11). Evidently, Sancho was referring to a dispute between Meckenberg and a OTB employee named Bettye Page ("Page"), an African-American woman, where Page threw a mirror at plaintiff. Plaintiff states that she attempted to address the dispute with OTB management, but was rebuffed because of Page's race. (Meckenberg Aff. ¶ 11). Meckenberg also alleges that Page called her a "white mother fucker" on unspecified occasions but presumably before Page was laid off in 1993.

Meckenberg claims that she was denied promotion to an OPCEN supervisor because of her race or gender, despite being assured by various OTB managers that she was a capable employee and that she would receive full consideration for the position. (Compl. ¶¶ 8, 11, 14, 20). Eventually, Meckenberg approached defendant Dukes, who was then a Senior Director of Administrative Services, about the discriminatory conduct on or about August, 1989. (Meckenberg Dep. at 56; Compl. ¶ 16). Dukes, according to plaintiff, encouraged her to file a discrimination complaint with the New York State Division of Human Rights. (Compl. ¶ 16). In December, 1990, Meckenberg and the OTB reached a conciliation agreement ("Conciliation Agreement" or "Agreement") whereby Meckenberg would receive a promotion to Principal Racing Data Coordinator in OPCEN. (Defs.' Mot. for Summ. J., Ex. A). Meckenberg agreed to take the position for an annual salary of $32,000, after rejecting OTB's initial offer of $29,000. (Defs.' Mot. for Summ. J., Ex. A). Furthermore, under the Agreement, Meckenberg waived any claims to retroactive wages, salary, or benefits. (Defs.' Mot. for Summ. J., Ex. A). OTB agreed not to retaliate against Meckenberg for bringing the complaint. (Defs.' Mot. for Summ. J., Ex. A). However, she contends that Nick Cirillo ("Cirillo"), Vice President of Racing Operations, immediately expressed his dislike for plaintiff, stating that she wasn't fit to manage and that she would never get another raise at OTB. (Meckenberg Dep. at 192). Meckenberg also claims that Cirillo once called her a "pain in the ass" and a "bitch" for vocalizing her complaints sometime around 1990 to 1991, and told her that some departments at OTB were "no place for a woman" in 1989 or some date prior to that year. (Meckenberg Dep. at 52, 192).

Meckenberg states that upon commencing her position as a manager, she attempted to "reform the department and instill additional responsibility into the staff." (Compl. ¶ 24). The staff, however, responded with disrespect and resentment, and often ignored her memos and directives. (Compl. ¶¶ 24-25). On February, 24, 1991, Meckenberg claims that she found most of the staff engaged in "stealing time;" that is, having another employee punch in one's time card while one is absent from work. (Compl. ¶ 25). She reported the incident to Sancho, who did not respond. (Compl. ¶ 25). Meckenberg asserts that in another incident, Dukes proved to be similarly unresponsive to plaintiff's concerns by refusing to adequately investigate the theft of papers from her desk. (Meckenberg Dep. at 175-76). When pressed to continue the investigation, Dukes allegedly threatened Meckenberg with termination if she did not drop the matter. (Meckenberg Dep. at 176).

OTB was also unresponsive to Meckenberg's requests for additional support in OPCEN, or in the alternative, for a transfer to a different department. From late 1993 to 1995, layoffs, terminations, and other absences created a shortage of staff in the OPCEN department. (Compl. ¶¶ 27-31). By March, 1995, Meckenberg alone was responsible for the entire department. (Compl. ¶ 31). Meckenberg asked for additional staff support from defendant Romano, who was her supervisor, but did not receive such help. (Compl. ¶ 32). Failing to receive the help she needed, Meckenberg applied for a lateral transfer to the position of Senior Buyer on June 20, 1995. (Compl. ¶ 33). After interviewing for the position, she received notification that she had not received the job because she did not have the requisite qualifications. (Meckenberg Dep. at 119). On June 26, 1995, she requested a transfer to either the Telephone Betting, Intergovernmental Affairs, or Media Relations department. (Compl. ¶ 34). Romano refused to grant her transfer request, telling her that she was vital to the OPCEN department. (Meckenberg Dep. at 122). The position at Intergovernmental Affairs was eventually given to Dennis McManus who, according to Meckenberg, was less experienced than she. (Compl. ¶ 35). Meckenberg also made a written request for transfer to Allie Sherman ("Sherman"), the President of OTB at the time, in late June, 1995 that was never answered. (Compl. ¶ 36). Meckenberg states that she was informed shortly thereafter that Romano and defendant Palumbo, an Executive Vice President at OTB, had decided that she would stay at her current position for the time being. (Compl. ¶ 37). Plaintiff also claims that Romano "thwarted" her attempts to speak to Sherman about her transfer request and told her that she would not be allowed to speak with Sherman until Sherman had finished preparing the OTB budget. (Compl. ¶ 37; Meckenberg Dep. at 131-32). In essence, Meckenberg believed that she was being "held hostage" at OPCEN. (Meckenberg Dep. at 133).

On June 28, 1995, Meckenberg called a radio talk show that was being co-hosted by New York City Mayor Rudolph Giuliani ("Mayor Giuliani"). During the conversation with Mayor Giuliani, she asserted that she was being "harassed," "denied advancement," "suppressed," and "threatened" at OTB. (Compl. ¶ 39). The call was followed by an off-air conversation with Bruce Teitelbaum ("Teitelbaum"), a New York City official, who stated that the Mayor's office planned to investigate her complaints regarding the OTB. (Compl. ¶ 39).

Meckenberg asserts that as a result of those conversations with Mayor Giuliani and Teitelbaum, defendants retaliated against her. Specifically, she claims that immediately after her call to Mayor Giuliani, Romano removed posters on the glass windows surrounding her cubicle that she used to create privacy. (Compl. ¶ 40; Meckenberg Dep. at 153). Romano subjected her to increased supervision, requiring her to account for "every minute" of her day. (Meckenberg Dep. at 153). "Similarly situated male employees" were not subject to the same treatment. (Compl. ¶ 40). Romano also suddenly became stringent with her arrival time at OTB, docking her pay for arriving a few minutes late. (Compl. ¶ 40; Meckenberg Dep. at 158). Romano also restricted her use of the telephone for personal calls. (Meckenberg Dep. at 162-63). In addition, Meckenberg claims that Palumbo criticized her at a meeting sometime around July 4, 1995 for calling Mayor Giuliani. Palumbo allegedly said that her complaint to Giuliani "might not have been the brightest thing to do if one wanted to advance." (Meckenberg Dep. at 138).

On July 7, 1995, Meckenberg met with Sherman and Palumbo to discuss a recent request for a transfer out of OPCEN. (Compl. ¶ 42). At the meeting, Sherman allegedly stated that he would indeed grant her request by July 19, 1995. (Compl. ¶ 42). However, she was informed on July 21, 1995 by Sherman and Palumbo that she would not be transferred in the "best interest of the company." (Compl. ¶ 43; Meckenberg Dep. at 140). On that same day, Romano allegedly questioned the veracity of a note by Meckenberg's doctor stating that she was not to work more than 35 hours per week without a day off. (Compl. ¶ 44). While Romano accommodated her medical necessity, he also threatened to deny plaintiff her annual vacation days. (Compl. ¶ 44). Meckenberg also claims that Sherman reneged on subsequent promises to hire additional staff for the OPCEN department. (Compl. ¶¶ 45-46). On August 2, 1995, Meckenberg filed a Charge of Discrimination with the Equal Opportunity Employment Commission, alleging a Title VII violation. (Defs.' Mot. for Summ. J., Ex. B).

Meckenberg alleges that eventually the stress from her job situation and the discriminatory treatment by defendants caused her to have a "spastic colon attack" on August 29, 1995. (Meckenberg Dep. at 142-43). Due to the severe nature of her illness, she asked Romano to have someone check her work for that day. (Compl. ¶ 13). Romano, however, allegedly refused to help Meckenberg, stating that "it's your department, it's your responsibility." (Compl. ¶ 47). Upon failing to receive the requested help from Romano, Meckenberg attempted to speak to Sherman who directed her to Robert Unger ("Unger"), the inspector general for the OTB. (Compl. ¶ 49). As a result of her meeting with Unger, she was transferred temporarily to the Telephone Betting Deposit Accounts ("TBDA").

However, according to plaintiff, the harassment continued after her transfer out of OPCEN. On September 1, 1995, Meckenberg attempted to pick up her paycheck from the payroll department. (Compl. ¶ 52). She was informed that Romano had ordered that the checks only be released to his secretary. (Compl. ¶ 52). It was only after she enlisted the help of an OTB supervisor that she was able to receive her paycheck. (Compl. ¶ 52).

On September 6, 1995, Meckenberg met with Doreen Wong ("Wong"), the OTB's equal employment opportunity director. (Compl. ¶ 52). Wong allegedly asked Meckenberg to drop her EEOC complaint in exchange for being assigned to the TBDA department permanently. (Compl. ¶ 53). Meckenberg stated that she did not wish to be assigned to the TBDA; rather, she told Wong that she would drop her suit on the following conditions: that she could work Monday through Friday, from 9 a.m. to 5 p.m.; that the time docked from her paycheck be returned; that she be ensured that her paycheck never be withheld again; and that she have the final acceptance on any permanent position to which she would be assigned. (Compl. ¶ 54). Around this time, Palumbo allegedly threatened Meckenberg again, stating that he would "make [her] life so miserable downstairs that [she] would be forced to quit if [she] didn't back off." (Meckenberg Dep. at 184). Meckenberg continued to press for a transfer and met with two OTB directors about openings in other departments in early September, 1995. Eventually, she accepted a position in the Customer Service Department, where the hours were 9 a.m. to 5 p.m. with weekend work required on some occasions. (Compl. ¶ 56; Meckenberg Dep. at 152). Meckenberg does not allege any discriminatory treatment once she transferred to the Customer Service Department, where she worked until her voluntary resignation in April, 1997.

In addition to the specific incidents already described, Meckenberg alleges she was victim of a number of ongoing discriminatory practices at OTB, including receiving less pay than other managers at OPCEN on account of her gender and being treated differently on account of her race. For instance, Meckenberg states that she was not allowed to read at her desk, although two black females were permitted to read the Bible. (Compl. ¶ 57).

Meckenberg filed her complaint in this court on July 12, 1996 after receiving a Notice of a Right to Sue letter from the EEOC on April 26, 1996. Defendants moved for summary judgment, pursuant to Rule 56, F.R. Civ. P., on substantive and procedural grounds on June 15, 1996.


I. Summary Judgment Standard

Additional considerations should be taken into account when deciding whether summary judgment is appropriate in an employment discrimination case. See Gallo, 22 F.3d at 1224. When an employer's intent, motivation, or state of mind is at issue, summary judgment should be granted sparingly. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (summary judgment is "ordinarily inappropriate where an individual's intent and state of mind are implicated."). Nevertheless, the plaintiff must offer "`concrete evidence from which a reasonable juror could return a verdict in his favor.'" Dister, 859 F.2d at 1114 (quoting Liberty Lobby, 477 U.S. at 256, 106 S.Ct. 2505).

II. Statute of Limitations

A. Title VII

Defendants first argue that portions of plaintiff's Title VII claims are time-barred.*fn2 In states such as New York that have an agency charged with handling discrimination complaints, the statute of limitations for filing a charge with the EEOC is 300 days. See 42 U.S.C. ยง 2000e-5(e)(1). Failure by the plaintiff to file a timely charge with the EEOC bars the civil claim in federal court unless the defendants waive the requirement or are estopped from asserting it, or unless the limitations period is tolled. See Baba v. Warren Management Consultants, Inc., 882 F. Supp. 339, 342 (S.D.N.Y. 1995) (Batts, J.) (quotation marks omitted). Thus, ...

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