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FORTS v. CITY OF NEW YORK DEPARTMENT OF CORRECTION

United States District Court, Southern District of New York


June 4, 2003

LAVINIA FORTS, PLAINTIFF, AGAINST THE CITY OF NEW YORK DEPARTMENT OF CORRECTION, DEFENDANT.

The opinion of the court was delivered by: Laura Taylor Swain, District Judge

AMENDED OPINION AND ORDER

Plaintiff Lavinia Forts ("Plaintiff" or "Forts") brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against the City of New York Department of Correction ("Defendant" or "DOC") claiming employment discrimination. Plaintiff also invokes the Court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367 for claims of unlawful discriminatory practices asserted pursuant to the New York City Administrative Code, Section 8, and the New York State Executive Law, Section 296, and the Court exercises such jurisdiction. Plaintiff alleges the existence of a hostile work environment based on racial and sexual discrimination. Plaintiff further claims that she was subjected to discipline in retaliation for her complaints about the alleged racially and sexually inappropriate conduct.

Now before the Court is Defendant's motion for summary judgment. Defendant contends that Plaintiff has failed to establish a prima facie case of hostile work environment discrimination based on race and sex. Defendant also asserts that it is entitled to summary judgment with respect to Plaintiff's retaliation claim, arguing that it had a legitimate nondiscriminatory reason for imposing a challenged suspension. Finally, Defendant argues that, if this Court dismisses all of Plaintiff's federal claims, the Court should decline to exercise supplemental jurisdiction over the state claims. Plaintiff opposes the motion.

The Court has considered thoroughly all of the parties' submissions and arguments. For the following reasons, Defendant's motion for summary judgment is granted with respect to the hostile work environment claim and denied with respect to the retaliation claim.

BACKGROUND

The following factual recitation is based on Defendant's statement of material facts pursuant to Local Rule 56.1 and Plaintiff's response to Defendant's statement and affidavit in opposition to the motion for summary judgment. The following facts are undisputed except to the extent specifically characterized below as allegations.

Plaintiff is an African-American female. Plaintiff is employed as a correction officer for the City of New York Department of Correction, and has been since March of 1989. Def. 56.1 Stmnt of Undisputed Facts ¶ 1. Pursuant to a litigation settlement with DOC, Plaintiff was assigned to work at the Staten Island Courts' ("SIC") Criminal Court facility in or about 1990-1991. Id. ¶ 2. In or about 1994-95, on the recommendation of Captain Carlos Rodriguez, Plaintiff's superior, Plaintiff chose to transfer to the SIC Supreme Court facility. Id. ¶ 4.

On January 12, 1998, Plaintiff alleges, her co-worker Correction Officer Joseph Marino said to her in front of other male correction officers, "Did anybody ever have sex in the backseat of a car and have sex in all types of positions?" Id. ¶ 6. Plaintiff further alleges that, on February 17, 1998, Officer Marino pricked her back with a sharp object. Id. ¶ 11. Plaintiff confronted Officer Marino at that time; he allegedly told Plaintiff that he had scratched her with his fingernail. Id. ¶ 12. Plaintiff did not seek medical attention while at work that day, nor did she report the incident to any supervisors. Id. ¶ 14. Plaintiff, however, on the same day went to her doctor and obtained a prescription for an HIV test and a Hepatitis test. Id. ¶ 15.

On or about February 20, 1998, Plaintiff informed Captain Rodriguez of the remark Officer Marino had allegedly made in her presence in January 1998 and of the alleged pin prick incident on February 17, 1998. Id. ¶ 17. Plaintiff alleges that Captain Rodriguez replied that "[t]he other officers will never be witnesses for you; you are wasting your time." Pl.'s Decl. in Opp'n to Summ. J. ¶ 10. On the same day that Plaintiff reported the incidents to Captain Rodriguez, the Captain offered to try to move the Plaintiff away from Officer Marino to another, similar, post where the ventilation was better. Def. 56.1 Stmnt of Undisputed Facts ¶ 18.

Plaintiff alleges that, on February 20, 1998, Officer Marino offered to feed her a piece of birthday cake while licking his lips. Id. ¶ 20. According to Plaintiff, this incident took place later on in the day on which Plaintiff had reported the prior incidents to Captain Rodriguez. Pl.'s Aff. in Opp'n to Summ. J. ¶ 11. Officer Marino is alleged to have said, "This cake is so good, Forts, you should sit down and let me feed you." Id. On or about February 23, 1998, Plaintiff sent a memorandum to Assistant Deputy Warden Dennis Genco ("Deputy Genco") complaining of the alleged incidents with Officer Marino. Def. 56.1 Stmnt of Undisputed Facts ¶ 23. On the same day that Deputy Genco received Plaintiff's complaint, he went to the SIC facility to investigate her allegations. Id. ¶ 24. Deputy Genco recommended that Plaintiff and Officer Marino be separated, that each receive an interview with the Correction Assistance Response and Education Center (CARE), and that the staff at the SIC facility receive additional training on sexual harassment issues. Id. ¶ 26; Pl.'s Aff. in Opp'n to Summ. J. ¶ 33. Plaintiff alleges that she was never made aware of this recommendation until the discovery phase of this lawsuit and that she never received the additional training. Pl.'s Aff. in Opp'n to Summ. J. ¶ 33; Pl.'s Response to Def.'s Stmnt of Undisputed Facts at 2. On March 6, 1998, Plaintiff filed a complaint with DOC's Equal Employment Opportunity ("EEO") office. Pl.'s Aff. in Opp'n to Summ. J. ¶ 13. Internal and DOC EEO investigations were conducted. Def. 56.1 Stmnt of Undisputed Facts ¶¶ 32, 36-37; Pl.'s Response to Def.'s Stmnt of Undisputed Facts at 3-4. Plaintiff alleges that, on March 26, 1998, she was directed to appear for a "random" drug test for the second time in a 60-day period. Pl.'s Aff. in Opp'n to Summ. J. ¶ 14.

On March 30, 1998, Plaintiff filed a complaint with the federal Equal Employment Opportunity Commission ("EEOC"), alleging that she had been sexually harassed by Officer Marino. Def. 56.1 Stmnt of Undisputed Facts ¶ 33. Plaintiff's claim was based on the alleged January 1998 comment about the sex in the car, the alleged February 1998 incidents including the cake and the pin prick, and alleged "looks" he gave her with his eyes. Id. ¶ 34.

On April 15, 1998, Plaintiff was suspended for failing to follow orders and for insubordination. Pl.'s Aff. in Opp'n to Summ. J. ¶ 16. According to Plaintiff, she never refused the order that was the subject of the suspension. Id. Plaintiff immediately filed a further complaint with the EEOC, charging DOC with retaliation. Def. 56.1 Stmnt of Undisputed Facts ¶ 39. The EEOC requested information from DOC regarding Plaintiff's retaliation claim and Investigator McNally conducted a further investigation, and prepared a response, dated September 28, 1999, to the EEOC's inquiries. Id. ¶ 40. Plaintiff was brought up on DOC charges for her alleged actions on April 15, 1998; an Administrative Law Judge at the Office of Trials and Hearings found Plaintiff guilty of refusing to obey orders. Id. ¶ 41. Plaintiff alleges that the recommended penalty was never implemented and the matter was administratively closed. Pl.'s Response to Def.'s Stmnt of Undisputed Facts at 4.

On September 16, 1998, Plaintiff alleges, Correction Officer Cinqmani (one of Plaintiff's co-workers) made two racially offensive remarks to Plaintiff as they discussed the movie Amistad. Def. 56.1 Stmnt of Undisputed Facts ¶ 42. According to Plaintiff, Officer Cinqmani said that his "favorite parts" of the movie were "[t]he way they got rid of excess cargo by chaining the slaves to an anchor and then throwing them overboard" and that "[b]lack people in Africa were uncivilized and slavery kept them from killing each other." Pl.'s Aff. in Opp'n to Summ. J. ¶ 23. Plaintiff reported the incident to Deputy Genco that same day, detailing the alleged statements of Officer Cinqmani. Def. 56.1 Stmnt of Undisputed Facts ¶ 43. Plaintiff alleges that Officer Cinqmani pushed her on the shoulder several times after she reported the Amistad incident to Deputy Genco and that Cinqmani stated that he would take over Plaintiff's post. Pl.'s Aff. in Opp'n to Summ. J. ¶ 25. Plaintiff alleges that she was asked to rewrite her report regarding the Cinqmani incident several times and that, after submitting three to four reports, she was given a complaint for submitting a false report for failing to mention a witness' name to the unnecessary use of force incident. Id. ¶¶ 27-28. On September 25, 1998, Plaintiff was tested for drugs again. Id. ¶ 29. On or about November 2, 1998, the DOC's EEO office began its investigation of the Amistad matter. Def. 56.1 Stmnt of Undisputed Facts ¶¶ 47-49.

On February 11, 1999, Plaintiff complained that an offensive sexual poster was taped to the door of Plaintiff's locker room at the SIC. Def. 56.1 Stmnt of Undisputed Facts ¶ 56. The poster in question was a photocopy of an advertisement for a store selling sex toys and depicted a man in chains and a woman standing next to him. Id. ¶ 60; Pl.'s Aff. in Opp'n to Summ. J. ¶ 30. Plaintiff reported the poster incident to Captain Greis at the SIC. Def. 56.1 Stmnt of Undisputed Facts ¶ 57. Captain Greis found that the poster had also been placed in several other places in the courthouse that were accessible to the general public, including on the Captain's door and the Court Clerk's door near the female locker room. Id. ¶ 58. Plaintiff's complaint and Captain Greis' investigation report of the incident were forwarded to the EEO office, where a further investigation was conducted. Id. ¶ 59. Beginning in February 1999, Plaintiff went out on sick leave because of the alleged stress she was suffering on account of the poster that was found on the female locker room door. Id. ¶ 62. Plaintiff alleges that she suffered a nervous breakdown and has sought medical and psychological counseling as a result of these incidents. Pl.'s Aff. in Opp'n to Summ. J. ¶ 31. On December 9, 1999, the EEOC sent Plaintiff a letter informing her that it had investigated was unable to substantiate her allegations of sexual harassment and discrimination. Def. 56.1 Stmnt of Undisputed Facts ¶ 66. Plaintiff filed this lawsuit on March 6, 2000. Id. ¶ 68.

DISCUSSION

Summary Judgment

Summary judgment shall be granted in favor of a moving party where 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 that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The non-moving party must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), making "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., v. Catrett, 477 U.S. 317, 322 (1986). See also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990), quoting Fed.R.Civ.P. 56(e); National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 (2d Cir. 1989). A court faced with a summary judgment motion does not make credibility determinations or weigh the evidence; all inferences must be construed in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Carlton v. Mystic Transportation Inc., 202 F.3d 129, 133 (2d Cir. 2000). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is inappropriate. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). "Conclusory allegations, conjecture and speculation" will not, however, create a genuine issue of fact. Kerzer v. Kingly Manufacturing, 156 F.3d 396, 400 (2d Cir. 1998).

Hostile Work Environment

A Title VII plaintiff claiming hostile work environment discrimination based, as here, on co-worker conduct must establish that (1) the workplace was "permeated with discriminatory intimidation" that was so severe and pervasive that it altered the work environment for the worse, and (2) that the conduct which gave rise to the hostile environment had a "specific basis" for being linked to the employer. Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). The standard for assessing a hostile work environment claim is both objective and subjective: the alleged victim must perceive the environment to be hostile or abusive, and the conduct must be so severe or pervasive that a reasonable person would find the environment hostile or abusive. Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993). "To withstand summary judgment, a `plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.' . . . In the end, `[d]etermining whether workplace harassment was severe or pervasive enough to be actionable depends upon the totality of the circumstances.'" Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (citations omitted). Plaintiff must also demonstrate that the hostile work environment complained of arises from hostility based on the plaintiff's membership in a protected class. An environment that would be equally harsh for all workers, or that arises from personal animosity, is not actionable under the civil rights statutes. See Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999); Richardson v. New York State Department of Correctional Service, 180 F.3d 426, 440 (2d Cir. 1999).

The Court first considers whether Plaintiff's proffered evidence is sufficient to make out a prima facie claim of hostile work environment based on gender and/or race. It is clear that Plaintiff subjectively perceived the SIC environment as hostile on both counts. The issue on this motion is, thus, whether Plaintiff has proffered enough evidence to demonstrate that a reasonable person would have perceived the SIC workplace as sufficiently hostile to have altered the conditions of plaintiff's employment for the worse, and that such hostile work environment arose from discrimination on account of race. See Brennan, 192 F.3d at 318-19.

Courts look to a number of non-exclusive factors in evaluating the totality of the pervasiveness or severity of the allegedly discriminatory workplace conduct. Harris, 510 U.S. at 23. These factors include: (1) the frequency of discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating or a "mere offensive utterance;" (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted. Richardson, 180 F.3d at 437 (internal quotations omitted); Harris, 510 U.S. at 23; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767-68 (2d Cir. 1998); Huang v. Gruner, No. 99 Civ. 5058, 2000 U.S. Dist. LEXIS 13732, at *8 (S.D.N.Y. Sept. 20, 2000). Incidents that are isolated or few in number will seldom support a finding of hostile work environment. Whidbee, 223 F.3d at 69. However, an isolated incident could give rise to a hostile work environment claim if the incident was so severe or egregious so as to alter the conditions of the work environment. Torres v. Pisano, 116 F.3d 625, 631 n. 4 (2d Cir. 1997).*fn1 "[W]hether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances." Harris, 510 U.S. at 23. The relevant inquiry is whether there was harassment "of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse . . . so long as the employee subjectively experienced a hostile work environment." Torres, 116 F.3d at 632; see also Schwapp, 118 F.3d at 112.

Considering the totality of the circumstances presented, the proffered facts do not indicate that the DOC officers' conduct could reasonably be viewed as having altered Plaintiff's work environment for the worse. Plaintiff has alleged that Officer Marino subjected her to sexual harassment by his January 1998 comment about the sex in the car, the February 1998 incidents about the cake and the pin prick, and the alleged "looks" he gave her. As to her racial discrimination allegations, Plaintiff recounted comments made by Officer Cinqmani in September 1998 — that his "favorite parts" of the movie Amistad were "[t]he way they got rid of excess cargo by chaining the slaves to an anchor and then throwing them overboard" and that "[b]lack people in Africa were uncivilized and slavery kept them from killing each other" — and the pushing incidents that allegedly followed. Moreover, Plaintiff claims that she was subjected to a hostile work environment in February 1999 when she found a poster advertising a sex store taped to her locker. Plaintiff has cited isolated incidents that do not meet the "severe and pervasive" standard of a race- and/or sex-based hostile work environment claim. Viewed as a whole, the evidence lacks objective indicators of sexual or racial basis, severity, and pervasiveness; it is thus insufficient to sustain Plaintiff's claim.

Although the incidents alleged by Plaintiff may have made her feel uncomfortable, they do not objectively indicate that the work environment was sexually or racially discriminatory. The record indicates that Officer Marino's "sex in all positions" comment was made to a group of both men and women. Indeed, Plaintiff did not complain that Officer Marino's comments were sexually discriminatory in the first instance but, according to Plaintiff, asserted that Officer Marino's comments offended her Christian beliefs. Am. Compl. ¶ 14. The comment was not about her specifically, or even about women specifically. Moreover, Officer Marino's allegedly pricking her on the shoulder in February 1998 and running away was not an overtly gender-discriminatory act. Plaintiff does not proffer any evidence to tie the physical incident with Officer Marino to Plaintiff's sex other than Plaintiff's subjective perception and conclusory assertions. Additionally, the bondage poster showing both men and women, found on the ladies' locker room door and other doors in publicly-accessible areas of the SIC, in February 1999, is not directed to any protected class. Plaintiff was not the only employee targeted by this incident. It is undisputed that the poster was found in areas where both men and women work, and showed both men and women in a demeaning situation. There is no objective indication of any anti-female bias in this incident.

As to Officer Cinqmani's Amistad comments in September 1998, the statements alone are insufficient to objectively indicate a racially hostile work environment. See Schwapp, 118 F.3d at 110 (citing Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986)) ("[f]or racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity"). Further, there is no objective indication that the alleged pushing and "I will get your job" comments by Officer Cinqmani later in September 1998 were racially motivated.

Moreover, the alleged harassment in this case does not meet the level of severity required to establish a discriminatory work environment. Plaintiff's claims that Officer Marino offered to feed her cake at a birthday party celebration in the office in February 1998 and licked his lips, and that he "would look at [her] when he would sit at his post . . . [and] make eye contact . . . [t]hat made [her] uncomfortable" (Pl.'s Deposition at p. 107) do not describe acts that are severe enough to amount to actionable sexual harassment. Plaintiff alleges no further remarks or conduct by Officer Marino. Pl. Deposition at p. 107-108. Officer Marino's conduct can best be categorized as "boorish" and does not amount to actionable sexual harassment. See Cruz, 202 F.3d at 572.

Likewise, the alleged acts were not pervasive enough to rise to the level of actionable sexual or racial harassment. The remarks and hostile physical conduct occurred six months apart and involved two different individuals; those acts were allegedly followed by different conduct by an unknown person a few months after that. Plaintiff's evidence provides no basis for finding continuity or for inferring any concerted action.

Considering the totality of the circumstances presented, whether taking the race and sex discriminations allegations separately or together, and whether taking the incidents separately or together, and even assuming that there was some protected class-based animus somewhere under it all, the evidence proffered is insufficient to raise a question of material fact with respect to the existence of a sex- or race-based hostile work environment that a reasonable person would have perceived as altering her working conditions for the worse and, hence, that would be violative of Title VII. The Court finds that, even viewing the evidence in the light most favorable to Plaintiff, summary judgment is appropriate on Plaintiff's hostile work environment claims. Because the same legal standards apply to claims of hostile work environment brought under New York State and City human rights laws, Defendant is also entitled to summary judgment with respect to Plaintiff's state and local law claims of hostile work environment discrimination. See McCoy v. City of New York, 131 F. Supp.2d 363, 370 (E.D.N.Y. 2001); Sowemimo v. D.A.O.R. Security Inc., 43 F. Supp.2d 477, 484 (S.D.N.Y. 1999).

Retaliation

Section 2000e-3(a) of Title VII prohibits an employer from retaliating against employees who have complained of unlawful discriminatory practices. 42 U.S.C.A. § 2000e-3(a) (1994). To establish a prima facie case of retaliation, a plaintiff must show that: (1) he or she was engaged in protected activity; (2) the employer was aware of the activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Terry v. United States, No. 98 Civ. 8249 (NRB), 2000 U.S. Dist. LEXIS 1748, at *23 (S.D.N.Y. Feb. 18, 2000); Richardson, 180 F.3d 426, 443; see also Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). Adverse employment actions are left to the Court's discretion to make determinations on a case by case basis. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997); Alston v. New York City Transit Authority, 14 F. Supp.2d 308, 311 (S.D.N.Y. 1998). A causal connection may be established by showing that the protected activity was followed closely by discriminatory treatment, through other evidence such as disparate treatment of other employees who engaged in similar conduct, or through direct evidence of retaliatory animus. Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991); see also Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996).

If the plaintiff makes the requisite initial showing, the defendant then has the burden "to articulate a `legitimate, nondiscriminatory reason' for its actions." Johnson v. Palma, 931 F.2d at 207 (citation omitted). "Finally, should the defendant meet the burden of coming forward with a permissible reason for its actions, the plaintiff must then show that the reasons advanced were pretextual." Id. The plaintiff must respond by identifying sufficient evidence upon which a reasonable jury could "find the proffered legitimate reason merely a pretext for impermissible retaliation." Richardson, 180 F.3d 426, 443. To establish the pretext element of the analysis, the plaintiff must show that the complained of action was truly retaliatory and not simply that the reasons articulated were false or a lie about the real reason for the adverse action. See Terry, 2000 U.S. Dist. LEXIS 1748, at *35. To defeat a defendant's summary judgment motion, "a plaintiff must produce sufficient evidence to raise a genuine issue of fact as to whether an impermissible reason played a determinative role in the adverse employment decision." Id. at *12-13. If the plaintiff does so, the factual issues are properly left to be decided by a jury. In cases of workplace discrimination involving retaliation claims, courts take meticulous care in addressing summary judgment, as retaliation allegations usually revolve around the employer's motivation and the subjective intent behind the employment decision. See Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984); Terry v. United States, 2000 U.S. Dist. LEXIS 1748, at *5.

Plaintiff claims that the following actions were retaliatory: the April 1998 suspension for failure to write an inmate injury report; the drug tests in January, March and September of 1998; and being required to write multiple, inconsistent versions of the Officer Cinqmani complaint and thereafter being cited for filing a false complaint.

Plaintiff has set forth a prima facie case of retaliation, as she has met all four elements of the standard articulated in Terry as enumerated above, with respect to her suspension. It is undisputed that Plaintiff engaged in a protected activity by filing a complaint internally with her supervisors, with Defendant's EEO office and the EEOC, and that Defendant was aware of the complaints. Plaintiff suffered adverse employment action by reason of the suspension. Finally, Plaintiff has come forward with a causal connection between the protected activity and the adverse employment action, as she was suspended from her employment just two weeks after filing her federal EEOC claim. See, e.g., Suggs v. Port Auth. of N.Y. & N.J., No. 97 Civ. 4066, 1999 WL 269905, at *6 (S.D.N.Y. May 4, 1999) (six months between filing EEOC complaint and firing suggests causal relationship).

There are material questions of fact regarding Plaintiff's suspension. Defendant responds to the Plaintiff's suspension allegation by disputing that Plaintiff has meet the adverse employment action and causal connection elements of the prima facie case. Defendant asserts that Plaintiff was suspended from work on April 1998 for failing to obey a direct order and being insubordinate to her supervisors. Defendant argues that it thus had a legitimate, nondiscriminatory reason for suspending Plaintiff, and that the suspension was not retaliatory in nature.

Plaintiff's evidence is sufficient to raise a jury issue as to pretext. DOC, in asserting that Plaintiff was suspended because she failed to follow orders, has come forward with a permissible reason for suspending Plaintiff; however, Plaintiff has proffered enough evidence to show that the reasons advanced by DOC raise questions of pretext to be left to the jury. In addition to the temporal relationship to Plaintiff's complaints, Plaintiff points out that the DOC's misconduct complaint in response to this incident misdated the incident by a month. Moreover, DOC apparently failed to comply with its earlier settlement agreement with Forts, which required that "any personnel action or discipline contemplated with respect to plaintiff shall first be approved by the Deputy Commissioner for Human Resources or, if he is not available, the Commissioner of the DOC," in that the Chief of Administration suspended Plaintiff. See Ex. E to Pl.'s Response to Def.'s Stmnt of Undisputed Facts. The failure to follow the settlement agreement and the discrepancies surrounding the injury report are sufficient to raise jury questions as to pretext. Thus, there are genuine material issues of fact on the pretext question which need to be resolved at trial.

With regards to the requests to rewrite the Cinqmani report and the subsequent complaint for submitting a false report, there are material issues of fact as to whether this constitutes employer reprisal. The disciplinary complaint against Plaintiff for violating DOC rules and regulations, see Supervisor's Complaint Report, dated October 15, 1998, at Ex. G to Pl.'s Response to Def.'s Stmnt of Undisputed Facts, which apparently ended up on Plaintiff's permanent record, is evidence of a "materially adverse change" in Plaintiff's employment status. See Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2000). Further, Plaintiff submitted an affidavit by Valerie Woodford, a fellow correction officer, who recounts a comment and a conversation she had with a DOC captain who explained that "they got [Forts] to change her reports and now we got her." See Woodford Aff., Pl.'s Response to Def.'s Stmnt of Undisputed Facts. Defendant has not come forward with any legitimate nondiscriminatory reason for its actions. Plaintiff has set forth issues of fact concerning whether the alleged directions to rewrite the report and citation for inaccuracy of the report were retaliatory.

Plaintiff's allegations concerning the administration of multiple drug tests to her are insufficient to meet the adverse employment action element of the standard. Plaintiff has not proffered any evidence that Defendant intended to manipulate the drug testing selection procedure such that she was disproportionally chosen for testing; thus, the drug tests do not amount to an adverse employment action. See Figueroa v. City of New York, 198 F. Supp.2d 555, 568-69 (S.D.N.Y. 2002) (requiring plaintiff to undergo drug tests more frequently than her colleagues is not adverse employment action without evidence that employer manipulated the drug testing selection procedure). Further, Defendant proffers that the random drug tests are part of Plaintiff's job as a correction officer and that the selection process is performed by a computer program based on social security numbers. See DOC Directive, effective date November 26, 1996, at Ex. R to Severino Decl. Defendant has proffered a legitimate nondiscriminatory reason to explain its practice and Plaintiff has not come forward with sufficient evidence to rebut this reason. See Figueroa, 198 F. Supp.2d at 569. Thus, Plaintiff is precluded from pursuing this argument further in relation to her cause of action for retaliation.

Defendant's motion for summary judgment as to the retaliation claim is therefore denied, except insofar as the claim relates to the administration of multiple drug tests. As to the drug tests, Defendant is entitled to judgment as a matter of law on Plaintiff's federal, state and local law retaliation claims.

CONCLUSION

For the foregoing reasons, Defendant's motion for summary judgment is granted as to Plaintiff's hostile work environment claim as asserted in Plaintiff's First, Third and Fourth causes of action and granted as to that portion of Plaintiff's state, federal and local retaliation claims as is premised on drug testing. The motion is denied as to the remaining aspects of Plaintiff's retaliation claim as set forth in Plaintiff's Second, Third, and Fourth causes of action.

IT IS SO ORDERED.


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