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March 28, 2002


The opinion of the court was delivered by: Gershon, District Judge.


The Society for Seaman's Children, now known as the Seamen's Society for Children and Families ("Society"), is a not-for-profit social services agency that provides foster care, adoption and counseling services in Brooklyn, Queens and Staten Island. The Staten Island office also provides assistance to runaways, homeless youth and other youth services, family day care, substance abuse treatment programs, and domestic violence services. Plaintiff Judy Brown was employed beginning 1986 in the Staten Island office, and held the title of Administrative Supervisor in the Teen Advocacy Program ("TAP") from 1990 until her termination in 1996. Following plaintiffs discharge, she filed a complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that, as a black female, plaintiffs termination was the product of discrimination on the basis of race, color and gender. Following a recommendation by the New York State Division of Human Rights, the EEOC determined that the evidence did not establish a violation, and issued a right-to-sue letter. This action, in which plaintiff has represented herself, followed. Following full opportunity for discovery, the defendant now moves for summary judgment.


The following facts are undisputed except where otherwise indicated.

Diane Sjolin, the Director of Youth Services, which included TAP, originally hired plaintiff as a social worker in TAP following interviews of plaintiff by Sjolin and Virginia Hartie, the Society's Director of Human Resources, primarily to provide counseling services to teenagers. Sjolin was plaintiffs immediate supervisor throughout her employment with the Society. Plaintiff was promoted first to be an assistant director and then, in 1990, was made administrative supervisor with an increased salary. Plaintiff testified that she thought that she should have been promoted from assistant director to director, instead of administrative supervisor, but despite "community feedback" that she was not made a director for racial reasons, plaintiff admitted that she did not make her dissatisfaction with her 1990 promotion known at the time, and there is no indication in the record that she made her dissatisfaction known at any time prior to her termination. Sjolin periodically prepared personnel evaluations of plaintiff, both before and after her promotions. Sjolin's evaluations of plaintiffs attitude, ability and performance were highly favorable generally, and at times Sjolin's praise was effusive. Sjolin's 1988 evaluation stated that plaintiff "is a pleasure to supervise," "is by nature a doer — she gives her all to her clients and the agency as a whole," "gets along well with co-workers, administrative staff, etc.," is a "fine representative of the agency," and concluded: "Judy is an outstanding worker and co-worker. I'd love to clone her." A 1994 evaluation described the additional responsibilities that plaintiff had assumed during periods of difficulty for certain Society programs, and the "vital" and "key" role she had played in planning and implementation of changes in programs. The 1994 evaluation referred to plaintiffs "excellent" ability "to set clear goals and to work with her staff in their achievement," stated that she had "developed into a fine supervisor" who was "good at handling crisis situations," and characterized her as an "excellent representative of our agency" with the public. Plaintiff acknowledged at her deposition that she believes she was treated fairly and was not subject to discrimination as a social worker or as supervisor, with the exception of the above-noted failure to make her a director in 1990, until the incidents in 1996 that led to her termination. Sjolin agreed in her deposition testimony that she had no complaints concerning plaintiffs performance before 1996; although they occasionally had disagreements, these matters were resolved amicably. Sjolin approved another salary increase for plaintiff in October 1995. In 1996, the makeup of the Society's employees was 38% black, 31% Hispanic, 25% white and 6% biracial; 87.5% were women.

Plaintiff maintains that Sjolin's attitude changed dramatically in 1996, and that Sjolin engaged in intimidating, threatening and demeaning conduct toward plaintiff. Sjolin, on the other hand, claims that plaintiff had engaged in a series of actions that were hostile and insubordinate, demonstrating an inability to accept the proper exercise of supervisory authority by Sjolin.

The first incident began on April 29, 1996. Plaintiff was responsible for supervising intake, which included handling walk-ins and telephone calls on the Society's hotline for referral to TAP services for assistance, including emergency assistance. In that capacity, plaintiff supervised Raymond Martinez, the intake coordinator, who prepared the schedules for staffing of intake. Plaintiff and Sjolin had previously discussed the need to utilize the Society's volunteers to assist in staffing intake because of shortages in the regular staff but, according to plaintiff, they had agreed that there were personnel issues that needed to be resolved before the volunteers could be used for that purpose. Plaintiff therefore was surprised to find that Martinez had allowed a volunteer, "Pearlie," to accompany him on April 29 as he performed intake duty. Plaintiff testified that, when she questioned Martinez, he advised her that he did not want to train one volunteer at a time, but he had been instructed by Sjolin to take Pearlie with him that day. Plaintiff telephoned Sjolin in Martinez's presence and put the call on speaker phone. Sjolin at the time was manning the hotline. Plaintiff testified that her purpose in calling Sjolin was to seek clarification of her instructions, since plaintiff had not been advised of Sjolin's direction to Martinez. Plaintiff denies expressing anger, raising her voice, being disrespectful or otherwise acting inappropriately during that call, but admits that she expressed confusion and frustration that Sjolin had taken this action without either Sjolin or Martinez talking to her. Sjolin, however, interpreted plaintiffs behavior during the call as rude and an inappropriate challenge to Sjolin's authority as Director to make decisions in TAP without necessarily having to consult plaintiff or obtain her concurrence. Sjolin also denies that she had instructed Martinez to train Pearlie notwithstanding her prior conversation with plaintiff in which they had agreed that there were issues to be resolved before volunteers could be used for intake. Sjolin maintains that she simply decided that since Pearlie was not needed for other tasks that day, it was a good opportunity to allow her to observe Martinez. Plaintiff and Sjolin discussed the incident during their next regularly scheduled supervisor's meeting on May 1, where Sjolin expressed her displeasure with plaintiffs conduct and admonished her that it should not be repeated.

Sjolin then discussed this incident with her supervisor, Linda Santlofer, Vice President of Community Programs. Santlofer instructed Sjolin to memorialize the matter in writing and to include a copy in plaintiffs personnel file. Plaintiff testified that she thought that this matter had ended with her May 1 discussion with Sjolin, and she was "shocked" and "surprised" to receive Sjolin's memorandum, dated May 10, 1996, which set forth Sjolin's characterization of the above events, calling plaintiff's behavior "unprofessional" and her tone on the telephone as "argumentative, loud and threatening." Sjolin's memorandum added: "I am distressed that you continue to bring up conflicts that I believed were resolved several years ago. This demonstrates that you have difficulty `letting go.'" Sjolin concluded by questioning plaintiffs ability to be a team player and her commitment to TAP. Although the memorandum invited plaintiff to meet with Sjolin and Santlofer to discuss the matter further, plaintiff testified that in view of the tone and substance of the memorandum, including its false statements, she needed to protect herself with a written response instead.

Plaintiff replied in writing on May 15 to this "unexpected memo," giving her version of the events and emphasizing that the sole purpose of her April 29 call to Sjolin was to seek clarification, "to avoid conflict and triangulation," not to challenge Sjolin's authority or to assert plaintiffs own. Plaintiff asserted in the memorandum that she became "extremely frustrated" during the telephone conversation when Sjolin belittled her concerns, especially after Sjolin disclosed that, unknown to plaintiff, she had already met with the volunteers and told them they could work on intake. Plaintiff also asserted that the incident was not an isolated one, as Sjolin had on other occasions undermined plaintiffs supervision of others. Plaintiff then questioned Sjolin's "motive and intentions" in preparing her memorandum and placing a copy in plaintiffs personnel file. Plaintiff requested that Sjolin explain what she meant about reviving old conflicts, because plaintiff did not know what Sjolin was referring to, and she also requested that Sjolin's memo be removed from plaintiffs personnel file, stating that it was unfair and suggested a "double standard at Society." By memorandum dated May 17, Sjolin replied that it was "not possible" to remove her memo but that plaintiffs response would be included in the file.

The staff became aware of the dissension between plaintiff and Sjolin. Plaintiff acknowledged that relationships within TAP had become strained. She testified that there were "power struggles," "favoritism" and "mistrust" in her unit, but that she was being wrongly accused of being the cause of dissension. At a staff meeting on May 17, Sjolin forcefully demanded that the staff put such matters aside and go about their business. Plaintiff asserted that Sjolin was loud and threatening at that meeting, used profanity, and questioned everyone's commitment; Sjolin admitted being angry and acknowledged cursing once. By memorandum dated May 22, responding to Sjolin's May 17 memo, plaintiff described Sjolin's behavior at the May 17 meeting as set forth above and questioned whether the Society had a double standard by which Sjolin and "others" could act with impunity while plaintiff and "others" were disciplined for similar, but less extreme conduct. Plaintiff renewed her request that Sjolin explain her reference to old conflicts if she would not remove the May 10 memo from plaintiff's personnel file.

The next incident, on May 31, 1996, also arose out of an instruction Sjolin gave to Martinez without discussing it with plaintiff and without plaintiffs knowledge. Shortly before leaving for a one-week vacation, Sjolin told Martinez that he should not schedule Belle Romero-Key for intake duty during June. Romero-Key had just returned from an extended absence for medical reasons, and Sjolin felt that it was more important that she catch up on her paperwork. Sjolin told Martinez that she planned to advise plaintiff before she left for vacation, but she did not do so. Martinez prepared the schedule and plaintiff approved it without knowing of the omission, but after plaintiff received complaints from one or two staff members about the matter, she first learned from Martinez of Sjolin's instruction. Plaintiff whited out her initials and instructed Martinez to prepare another version of the schedule that included Romero — Key. Plaintiff admonished Martinez for not informing her of Sjolin's direction so that everyone would be on the same wavelength. Plaintiff has admitted that she whispered under her breath that if this continues to happen, she would put it in her evaluation of Martinez. (Plaintiff admitted making the statement in a contemporaneous memorandum and in parts of her deposition testimony, but also denied in the deposition that she had threatened Martinez.) Although plaintiff had not intended it, Martinez heard her and loudly demanded that she repeat what she had said. Plaintiff did so but urged him to calm down and explained that she just wanted to work things out so that there would be no "triangulation" or misunderstandings.

Plaintiff then called Sjolin at home. Without telling Sjolin, she asked a coworker, Samantha Dawkins, to listen in on the conversation on the speaker phone in order to protect herself.*fn1 Once again, plaintiff characterized the purpose of her call as seeking clarification. Plaintiff testified that Sjolin agreed that she should have told plaintiff about her decision, they agreed that Sjolin would review the schedule when she returned from vacation and decide which version to use, and they agreed to discuss the matter further after plaintiff returned from her own vacation scheduled for the following week. Sjolin, however, described plaintiffs tone as angry and testified that she viewed the incident as another inappropriate attempt by plaintiff to assert her authority and a further illustration of plaintiffs inability to accept Sjolin's superior authority as director of TAP.

Martinez complained to Santlofer about his meeting with plaintiff of May 31. Santlofer told him that he should either discuss the matter with plaintiff or memorialize the incident in writing. Martinez prepared a memorandum dated June 4, 1996, addressed to Sjolin, describing the incident and expressing his unease at plaintiffs "delicate and indirect" threat of a negative evaluation for having followed Sjolin's instructions. The Martinez memorandum stated that it was the second such incident in the past several months, although plaintiff had generally treated Martinez "professionally and respectfully." Santlofer, Sjolin and Virginia Hartie, the Director of Human Resources, met to discuss the situation. Gerard McCaffery, who had just started that week as the Society's new President and Chief Executive Officer, joined the discussion. These witnesses claim that McCaffery was never advised of the identity, race or gender of the supervisor under Sjolin that they were discussing, but solicited his opinion as to what should be done. (Plaintiff questions the credibility of this testimony, especially the notion that the person was never referred to as "she".) McCaffery suggested that the individual should be suspended for a brief period to ponder her future with the Society, but the others rejected that treatment as being harsher than previous responses by the Society to disruptive behavior. Instead, they decided that plaintiff should be placed on probation if Martinez's account of the meeting was accurate.

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