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MECKENBERG v. NEW YORK CITY OFF-TRACK BETTING
April 13, 1999
LORI A. MECKENBERG, PLAINTIFF,
NEW YORK CITY OFF-TRACK BETTING, HAZEL DUKES, NICHOLAS ROMANO, AND ROBERT PALUMBO, DEFENDANTS.
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
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
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,
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
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.
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
Under Rule 56(c), F.R. Civ. P., summary judgment is rendered
when "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
the moving party is entitled to a judgment as a matter of law."
"[T]he substantive law will identify which facts are material . .
. [and] [o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of summary judgment." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The
burden of showing that no genuine issue of material fact exists
rests on the party seeking summary judgment. See Chambers v. TRM
Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). Furthermore,
all ambiguities must be resolved and all inferences drawn in
favor of the party against whom summary judgment is sought. See
Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223 (2d
Cir. 1994). Thus, "not only must there be no genuine issue as to
the evidentiary facts, but there must also be no controversy
regarding the inferences to be drawn from them." Donahue v.
Windsor Locks Bd. of Fire Commissioners, 834 F.2d 54, 57 (2d
Cir. 1987). On a motion for summary judgment, a court "cannot try
issues of fact; it can only determine whether there are issues to
be tried." Chambers, 43 F.3d at 36-37 (quoting Donahue, 834
F.2d at 58).
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.
II. Statute of Limitations
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. § 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, ...