United States District Court, S.D. New York
March 24, 2004.
PAULA N. HILL, Plaintiff; -against- CITIBANK CORP. and ADVANTAGE STAFFING, INC., Defendants
The opinion of the court was delivered by: JOHN KOELTL, District Judge
OPINION and ORDER
This is an employment discrimination action brought by the plaintiff,
Paula N. Hill, against two defendants: Citibank, N.A. ("Citibank") d/b/a
Citigroup Asset Management and named in this action as Citibank Corp.;
and Advantage Staffing, Inc. ("Advantage"), now known as Advantage Human
Resourcing. The plaintiff was employed by Advantage, a staffing
agency, and was assigned to work as a temporary employee at Citibank from
around December 1997 to April 1999. The plaintiff alleges that she was
subjected to a hostile work environment by a supervisor based on her race
and that her assignment at Citibank was terminated in retaliation for her
complaining about the alleged harassment to Citibank's Human Resources
The plaintiff brought claims for a hostile work environment based on
racial harassment and for retaliation under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., as
well as under the New York State Human Rights Law ("NYSHRL"), N.Y.
Exec. Law § 296, and the New York City Human Rights Law PNYCHRL"),
N.Y.C. Admin. Code § 8-107. The defendants moved for summary judgment
pursuant Fed.R.Civ.P. 56(c) dismissing the plaintiff's claims on the
grounds that they are time barred and that they should be dismissed on
the merits. While the motions were pending, the claims against Advantage
were settled and dismissed with prejudice. This Opinion and Order,
therefore, addresses only the motion by Citibank for summary judgment
dismissing the claims against it.
The following facts are undisputed unless otherwise noted.*fn1 The
plaintiff was an employee of Advantage, which furnishes temporary
staffing services; in or around spring of 1998, the plaintiff was placed
as a temporary clerical employee with Citibank's Asset Management
Operations Group (the "Operations Group" or the "Group"). (See
Compl. Count One ¶ 1; Citibank's Statement of Material Facts Pursuant
to Local Rule 56.1 ("Def.'s
Rule 56.1 Strut.") ¶ 1; Pl.'s Statement of Material Facts
Pursuant to Local Rule 56.1 ("Pl.'s Rule 56.1 Stmt.") ¶ 1.) The
Group's primary function was to provide logistical support in connection
with office and employee relocations. (Def.'s Rule 56.1 Stmt. ¶ 2.)
At the time, the Operations Group was headed by Jack Carter, who was a
Citibank vice president. (See id. ¶¶ 3-4.)
The plaintiff was brought into the Group specifically to provide
administrative assistance to other Vice Presidents, including Katie
O'Connell, McDonald Harewood, Donald Dromm, and John Remmert.
(Id. ¶ 8.) At the time that the plaintiff worked in the
Group, it was in the process of relocating offices from New York City to.
Stamford, Connecticut. (Id. ¶ 9.) In or around June 1998,
the plaintiff's duties shifted and she began providing support primarily,
although not exclusively, for Ms. O'Connell, who was responsible for a
project involving Y2K (the "Y2K Project"). (Id. ¶ 10.) The
plaintiff was initially paid twenty dollars per hour (id. ¶ 5), but
upon being reassigned to that project, her pay was increased to thirty
dollars per hour, making her the highest compensated temporary clerical
employee in the Group (id. ¶ 12).
In July 1998, a new vice president, Holly Miller, was assigned to the
operations Group, having recently transferred from Citibank's London
office. (Id. ¶ 13.) The plaintiff does
not claim to have experienced any harassment through June 1998, but
from Ms. Miller's first day at the New York office, the work environment
allegedly began to change. That first day, the plaintiff claims, Ms.
Miller told a story about former, college classmates who were African
American and would put Vaseline in their hair to straighten it.
(See id. ¶ 15.) The plaintiff alleges that from
July 1998 through at least February 18, 1999, Ms. Miller subjected her to
hostile treatment that allegedly involved Ms. Miller being loud, rude,
and vicious toward the plaintiff (see id. ¶
18-19), and also involved Ms. Miller making inappropriate comments
directed at the appearance, language, or customs of African Americans.
(See Compl. Count One ¶ 2.)
Specifically, the plaintiff claims that Ms. Miller on various
occasions: stated that the plaintiff had a smooth complexion and
complimented her hair style in front of another African American
employee; related stories from her youth about feeling sorry for the
"black kids" who were left around the public pool all day until their
hair turned orange; expressed resentment for being called during dinner
by campaigners for Rev. Al Sharpton; and made fun of the speech patterns
of Jesse Jackson and blacks in general. (See Def.'s
Rule 56.1 Stmt. ¶ 20; Pl.'s Rule 56.1 Stmt. ¶ 11.) There was also an
incident, variously described by the parties, where Ms. Miller asked the
plaintiff something to the effect of, "What do black people eat
on Martin Luther King's birthday?" The plaintiff, who claims to
have been embarrassed and taken aback by the question, replied, "White
people." (See Def.'s Rule 56.1 Stmt. ¶ 20; Pl.'s
Rule 56.1 Stmt. ¶ 11; Tr. of Dep. of Paula N. Hill ("Pl. Dep."), dated Dec. 5,
2002, at 249-50.) The plaintiff also notes that a two line
excerpt regarding "The Life of a Slave" was sent to the communal printer
used by her and another black employee, among other people. (See Def.'s
Rule 56.1 Stmt. ¶¶ 20, 22; Pl.'s Rule 56.1 Stmt. ¶ 11; Decl. of
Ira G. Rosenstein ("Rosenstein Decl.")' Ex. 1.)
On or about February 13, 1999, the plaintiff complained about Ms.
Miller's behavior to Ms. O'Connell, who suggested that the plaintiff
contact Vanessa Henley, a Human Resources representative at Citibank.
(See Def.'s Rule 56.1 Stmt. ¶¶ 25-26.) On February 18, 1999,
Ms. Henley, who is also African American, approached the plaintiff to
discuss what the plaintiff believed to be a pattern of disrespectful and
racially offensive behavior by Ms. Miller. (Id. ¶¶ 27-28.) Ms. Henley
conducted an investigation, which included meeting with Ms. Miller and
other Citibank vice presidents, including Mr. Harewood and Mr. Dromm.
(See id. ¶ 34.) Ms. Henley concluded that Ms.
Miller did not intend to hurt the plaintiff's feelings but that her
behavior was unprofessional because it demonstrated poor
judgment and did not relate to Citibank business in any way.
(See Decl. of Vanessa Henley ("Henley Decl.") ¶¶ 4-5.)
On February 25, 1999, Citibank issued a "Final Warning" memorandum,
drafted by the Human Resources Department and signed by Mr. Carter as
director of the Group, informing Ms. Miller that her conduct had
"compromised Citibank's policy on diversity and [its] commitment to
maintaining a work environment that is free of harassing, hostile, and
intimidating or offensive behaviors." (Rosenstein Decl. Ex. 2 (Mem. from
Jack Carter to Holly Miller, dated Mar. 23, 1999 ("Warning Memo");
see Def.'s Rule 56.1 Stmt. ¶¶ 43-45.) In addition to being
warned that further inappropriate behavior would lead to corrective
action up to and including termination, Ms. Miller was required to
participate in a program on workplace diversity issues. (See Warning
Memo; Def.'s Rule 56.1 Stmt. ¶ 44.) The warning was to remain in
effect for six months. (See Warning Memo.) Ms. Miller protested
her receipt of the warning letter; on March 5, 1999, Ms. Miller announced
that she was resigning from Citibank, and her last day was April 1, 1999.
(Def.'s Rule 56.1 Stmt. ¶¶ 46-47.)
The plaintiff acknowledges that after meeting with Ms. Henley "[t]hings
had calmed down" at the office, and she was generally no longer feeling
hostility in the workplace. (Id. ¶ 41; Pl. Dep. at 206.)
The plaintiff, however, has raised two
other incidents allegedly occurring a few weeks after her February
1999 meeting with Ms. Henley although the plaintiff is unsure of
exactly when either occurred. One alleged incident involved another vice
president, Mr. Dromm. In response to the plaintiff telling a story about
rude treatment by a token booth operator, Mr. Dromm allegedly called the
plaintiff "a mean/nasty person" and asked her whether she pulled her
switchblade out on the booth operator. (See Def.'s
Rule 56.1 St. ¶¶ 23-24; Pl. Dep. at 170-72.) The plaintiff feels the remark
insinuated that "blacks carry switchblades." (Pl. Dep. at 171.) In
addition, the plaintiff claims that she discovered the print out
regarding "The Life of a Slave" sometime after she spoke with Ms. Henley,
although she has not stated more specifically when the excerpt was
discovered. (See Hill Decl. ¶ 8.)
Also in March 1999, at the same time as Ms. Miller was leaving
Citibank, a transition was occurring where Mr. Garter the
Director of the Group-was preparing to retire and Richard Galligan was
preparing to take over. (See Decl. of Jack Carter ("Carter Decl.") ¶
2; Decl. of Richard Galligan ("Galligan Decl.") ¶ 2; see
generally Tr. of Dep. of Jack Carter ("Carter Dep."), dated May 12,
2003, at 23-25, 30-41.) Mr. Carter's last day was March 31, 1999, and Mr.
Galligan assumed his full responsibilities in April 1999. (See Carter
Decl. ¶ 2; Galligan Decl. ¶ 2.).
Mr. Galligan has stated that upon assuming his position, he was issued
a mandate to reduce expenses, and in response he reviewed several cost
cutting measures, including the reduction of temporary employee
costs. (Galligan Decl. ¶ 5.) Mr. Galligan declared that in or around
April 1999 he made the determination to discontinue the plaintiff's
services without consulting anyone else. (Id. ¶¶ 5-8.) He
decided to end the plaintiff's assignment because she was more highly
compensated than any other temporary clerical employee in the Group,
because* the Group was being relocated to Connecticut, and because he
felt the plaintiff's services were no longer necessary. (Id. ¶ 7.) He
stated that at that time he was unaware of any complaints raised by the
plaintiff or any action taken against Ms. Miller. (Id. ¶¶ 9-10.)
Pursuant to the normal business practice, Citibank informed Advantage
of its decision, and on April 20, 1999, Advantage notified the plaintiff
that her assignment with Citibank was being terminated. (See
Def.'s Rule 56.1 Stmt. ¶ 52.) April 19, 1999 was actually the
plaintiff's final day at Citibank because she had taken personal leave
starting that day. (See id. ¶ 53.)
The plaintiff disputes the circumstances surrounding her termination
from Citibank and Advantage. She contends that Mr. Carter was involved in
the decision to terminate her, and that he ordered the termination
because he disagreed with the actions
taken against Ms. Miller and because he allegedly resented the
plaintiff for Ms. Miller's subsequent resignation. (See Pl.'s
Rule 56.1 Stmt. ¶¶ 28, 39-51. But see Def.'s Rule 56.1 Stmt.
¶ 51.) The plaintiff contends that the decision to terminate her was
actually made on or around March 11, 1999 and that this decision was
memorialized in an email from Ms. O'Connell to Mr. Galligan that was also
sent to Mr. Carter, along with other vice presidents. (See
Kraft Decl. Ex. 3.) The plaintiff further contends that she was replaced
by another administrative assistant, although Citibank disputes this
point. (Compare Pl.'s Rule 56.1 Stmt. ¶ 32, with
Def.'s Rule 56.1 Stmt. ¶ 57.)
The plaintiff filed charges of discrimination with the EEOC, and the
EEOC issued a Notice of Charge of Discrimination to Citibank on July 12,
2000.*fn2 (See Rosenstein Decl. Ex. 6.) The plaintiff was
issued a right to sue letter by the EEOC on December 13, 2001 and filed
suit against Citibank and Advantage on March 8, 2002. (See
Compl.; Def.'s Rule 56.1 Stmt. ¶ 62.)*fn3
The standard for granting summary judgment is well established. Summary
judgment may not be granted unless "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 a judgment as a matter of law." Fed.
R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship,
22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary
judgment motion stage of the litigation is carefully limited to
discerning whether there are genuine issues of material fact to be tried,
not to deciding them. Its duty, in short, is confined at this point to
issue finding; it does not extend to issue resolution."
Gallo, 22 F.3d at 1224. The moving party bears the initial
burden of "informing the district court of the basis for its motion" and
identifying the matter that "it believes demonstrate[s] the absence of a
genuine issue of material fact." Celotex, 477 U.S. at 323. The
substantive law governing the case will identify those facts which are
material and "only 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 (1986).
In determining whether summary judgment is appropriate, a court must
resolve all ambiguities and draw all reasonable inferences against the
moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citing United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo,
22 F.3d at 1223. Summary judgment is improper if there is any evidence in
the record from any source from which a reasonable inference could be
drawn in favor of the nonmoving party. See Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party
meets its burden, the burden shifts to the nonmoving party to come
forward with "specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence
in the record and "may not rely simply on conclusory statements or on
contentions that the affidavits supporting the motion are not credible."
Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.
1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d
The defendant moves for summary judgment dismissing all of the
plaintiff's federal claims as untimely for failure to file a charge with
the EEOC in a timely manner-a precondition to suit under Title VII. It
also moves for summary judgment dismissing the plaintiff's hostile work
environment claims under state and
local law as barred by the state and local law three year
statute of limitations.
The plaintiff does not respond on this issue except to say that the
Court rejected the time bar arguments on the motion to dismiss
and that "collateral estoppel" prevents the defendant from raising the
issue on summary judgment. The "collateral estoppel" doctrine is plainly
inapplicable, and even if the plaintiff's argument is interpreted as
being based on "the law of the case" doctrine, it still has no merit.
Advantage, but not Citibank, filed a motion to dismiss in which it argued
that several of the claims, including both federal claims, were untimely.
In an Order dated November 8, 2002, the Court denied the motion without
prejudice to renewal, allowing evidence to be developed on such
timeliness issues. There was no determination that the plaintiff's claims
Because the plaintiff has not responded to the defendant's motions in
this respect, the plaintiff could be considered in default and the
challenged claims could be dismissed on that basis alone. Nonetheless,
the Court will analyze the substance of the statute of limitations
Under Title VII, before bringing a claim in federal court, a New York
plaintiff must file a charge with the EEOC within 300 days of the alleged
discriminatory action. See 42 U.S.C. § 2000e-5(e);
Harris v. City of New York, 186 F.3d 243,
247 (2d Cir. 1999); Coffey v. Cushman & Wakefield, No. 01
Civ. 9447, 2002 WL 1610913, at *2 (S.D.N.Y. July 22, 2002); Nweke v.
Prudential Ins. Co. of Am., 25 F. Supp.2d 203, 216 (S.D.N.Y.
1998).*fn4 This statutory requirement effectively acts a as statute of
limitations, and Title VII claims are barred by the failure to file a
timely charge. See Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 712 (2d Cir. 1996).*fn5
The statute of limitations begins to run when each discrete
discriminatory and retaliatory act occurs. See Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 113-14 (2002); Coffey, 2002
WL 1610913, at *2 (noting that discrete acts falling outside of the
statutory period cannot form basis for relief even if they are related to
other actionable conduct that is otherwise not time barred). With respect
to the plaintiff's Title VII retaliation claim, the limitations period
began running on April 20, 1999, when her assignment with Citibank was
terminated. (See Def.'s Rule 56.1 Stmt. ¶ 52.)
Because hostile work environment claims involve the combination of
multiple incidents and the continuing effect on the conditions of
employment, a claim is timely if any act contributing to pattern of
harassment occurred within 300 days of the filing of the EEOC charge.
See Morgan, 536 U.S. at 115; Coffey, 2002 WL 1610913
at *2. The defendant claims, based on the plaintiff's deposition
testimony, that any harassment ceased in February 1999, after the
plaintiff complained to the Human Resources Department. At the latest,
the harassment must have ceased by April 19, 1999- the plaintiff's last
day of work at Citibank.
The peculiar problem in this case is that it is unclear when the
plaintiff filed the EEOC charge against Citibank. The EEOC charge and
accompanying statement are not signed and dated, and the EEOC's records
of the plaintiff's claim were destroyed in the tragic events of 9/11/01.
The plaintiff does not remember when she filed the charge and has not
been able to provide any testimony or evidence that sheds light on the
situation. (See generally Pl. Dep. at 233-44 (discussing steps
taken before and in filing claim with EEOC).) Citibank, however, received
a Notice of Charge dated July 12, 2000. It argues that the charge must
have been filed no earlier than July 2, 2000 because the EEOC is
statutorily required to provide
notice to the employer within ten days of the charge being filed.
See 42 U.S.C. § 2000e-5(e)(1); 29 C.F.R. § 1601.14 (a).
Filing a timely EEOC Charge, exhausting administrative remedies, and
filing suit within 90 days of receiving a right to sue letter are all
statutory preconditions to filing a Title VII claim. See Jackson v.
Seaboard Coast Line R.R. Co., 78 F.2d 992, 999-1000 & n.7 (11th
Cir. 1982); Hladki v. Jeffrey's Consol., Ltd., 652 F. Supp. 388,
392 (E.D.N.Y. 1987). Under Rule 9(c) of the Federal Rules of Civil
Procedure, a plaintiff may aver generally that all conditions precedent
to suit have occurred, and any denial by the defendant must be made
specifically and with particularity. Fed.R.Civ.P. 9(c); see
Jackson, 678 F.2d at 1010.*fn6 Once the defendant has challenged
the condition precedent specifically and with particularity, the burden
is on the plaintiff to prove that the condition precedent was satisfied.
See Jackson, 678 F.2d at 1010; Hladki,
652 F. Supp. at 393 n.11; Mason v. Connecticut, 583 F. Supp. 729,
733 (D. Conn. 1984).
In this case, the plaintiff's Title VII claims must be dismissed
because the plaintiff would be unable at trial to offer any admissible
evidence that her charge was timely filed with the EEOC. The last of the
allegedly discriminatory actions could have occurred no later than April
20, 1999, when the plaintiff's assignment at Citibank was terminated. The
plaintiff would have had to meet the precondition of filing her EEOC
charge within 300 days of that date. The defendant has argued in this
motion specifically and with particularity that the charge is not timely
because it could have been filed no earlier than July 2000, substantially
after the 300 day period expired. Its argument is
circumstantially supported by the undisputed receipt of notice on July
12, 2000 and the statutory requirements governing the EEOC. While it is
not clear that the EEOC usually complies with the requirements governing
notice, the EEOC letter sent to Citibank is the only piece of reliable
and admissible evidence suggestive of the filing date.
The only potential evidence suggesting that a claim was filed earlier
than July 2000 is a copy of the EEOC charge and accompanying statement
introduced by the other defendant, Advantage, on its now moot
summary judgment motion. That copy of the EEOC charge contains a "fax
header" indicating that the
charge had been faxed by the plaintiff on January 27, 2000 at
around 1:00 a.m. (See Aff. of Beth Casey, dated May 22, 2003,
Attachment.) The plaintiff testified in her deposition that she sent her
charge to the EEOC by fax, although she was unable to testify as to when
she sent the charge; (Pl. Dep. at 244.) She has not submitted anything to
the Court to authenticate the fax or the information with respect to the
date and time printed on the fax, or to substantiate that the date and
time were the date and time that the fax was sent to the EEOC. There is
no basis for treating the "fax header" as reliable, and it would be
inadmissible at trial as hearsay an out of court statement offered for
the truth of the matter asserted that does not fall under an established
exception. See Fed.R.Evid. 801(c), 802; Total
Containment, Inc. v. Environ Prods., Inc., 921 F. Supp. 1355, 1370
(E.D. Pa. 1995) (ruling that "the fax burn in is insufficiently
trustworthy . . . to be admissible to establish the date of [the]
document" and thus finding residual hearsay exception, Fed.R.Civ.P.
803(24), inapplicable), aff'd in part and vacated in part on other
grounds, 106 F.3d 427 (Fed. Cir. 1997).
Without the "fax header," the plaintiff would be unable at trial to
present any evidence that an EEOC charge was filed within the 300
day statutory period. The only evidence that could be admitted the EEOC
Notice of Charge sent to Citibank 17
tends to prove that the charge was filed in July 2000 and could not
relate back to conduct that occurred in or before April 1999. Both
federal claims are therefore untimely.
Discrimination claims under the NYSHRL and NYCHRL are subject to three
year statutes of limitations for filing a complaint.
See N.Y. C.P.L.R. § 214(2); N.Y.C. Admin. Code §
8-502(d); Coffey, 2002 WL 1610913, at *3. The Complaint was
filed on March B, 2002, and thus, to be timely, the plaintiff's claims'
must have arisen for statute of limitations purposes after March 8, 1999.
The retaliation claims are clearly timely under state and local law
because the plaintiff's assignment at Citibank did not end until April
20, 1999. With respect to the sexual harassment claims, the defendant
argues that the plaintiff, at her deposition, acknowledged that
harassment by Ms. Miller ceased after the plaintiff spoke with Ms. Henley
on February 18, 1999. Indeed, based solely on acts specifically
attributed to Ms. Miller, the hostile work environment claims are not
timely under state and local law. The plaintiff, however, has also
alleged that, after complaining to the Human Resources Department, she
was sent an excerpt regarding "The Life of a Slave" and was harassed by
Mr. Dromm. Neither allegation is sufficient for the plaintiff to argue
that the period of harassment extended beyond February 1999.
The plaintiff has alleged that at the communal, printer that she used,
she once found a print out apparently regarding "The Life of a
Slave" consisting of the following text: "Reading Incidents in the life
of a slave made me realize just what being women in the south in the time
of slavery would be like. The experiences [excerpt cut off]." (Rosenstein
Decl. Ex. 1.) Even if this print out were discovered sometime in
March,*fn7 nothing in the excerpt itself is racially derogatory. Because
it was sent anonymously to a communal printer shared by many workers, it
is unclear that it was directed at the plaintiff by anyone with an
intent to harass the plaintiff, or indeed anyone, on the basis of race.
Cf. Alfano v. Costello, 294 F.3d 365, 377-79 (2d Cir. 2002)
(discounting in sexual harassment case evidence of anonymous jokes or
pranks not attributable to alleged harasser).
Moreover, the print out is relevant for statute of limitations
purposes only if it is "an act contributing to the claim" of a racially
hostile work environment. See Morgan, 536 U.S. at 117. The
excerpt objectively could not have contributed to any alleged hostile
work environment, nor could it have continued any alleged alterations of
the conditions of the plaintiff's employment. See Alfano, 294
F.3d at 373-74 (noting
test that conduct "must be severe or pervasive enough to create an
objectively hostile or abusive work environment" (internal quotation
The allegation with respect to Mr. Dromm is that one morning the
plaintiff was telling a story about how a token booth operator
was rude to her. Mr. Dromm responded by asking the plaintiff whether she
pulled a switchblade out on the booth operator, and the plaintiff felt
that Mr. Dromm was insinuating that blacks carry switchblades. (See Pl.
Dep. at 170-72.) Even assuming that this remark was made after March 8,
1999-although the plaintiff has not identified exactly when the remark
was made-the comment is not on its face racially based. Cf.
Alfano, 294 F.3d at 376-77 (considering individual alleged incidents
of harassment in summary judgment motion and distinguishing between
comments that support harassment claim and comments that were
unsubstantiated or "lack[ed] a linkage or correlation to the claimed
ground of discrimination"). Moreover, this stray remark cannot be
considered part of the ongoing pattern of conduct creating a hostile work
environment. There is no discernable connection to the incidents
involving Ms. Miller, and this lone statement does not come close to
rising to the level of a sufficiently severe act of intimidation,
ridicule, or insult that would alter the conditions of employment.
See id. at 373-74;
infra Part IV (explaining standard for showing
harassment for hostile work environment claims).
Without the print out regarding "The Life of a Slave" or Mr.
Dromm's comment being included in the alleged pattern of harassment, the
statute of limitations on the plaintiff's hostile work environment claim
began running before March 1999. The plaintiff's state and local law
claims for racial harassment are therefore time barred.
In sum, the retaliation claims brought under state and local
discrimination law are the only claims not time barred. The hostile work
environment claims brought under state and local law are time barred. All
of the federal claims are untimely because the plaintiff has presented no
evidence to show that she satisfied the precondition for filing her EEOC
charge in a timely manner. In any event, the hostile work environment and
retaliation claims must also be dismissed on the merits.
Under Title VII, as well as under state and local law, the plaintiff
must establish two elements to prove that she was subjected to a hostile
work environment based on race.*fn8 First
the plaintiff must demonstrate that the harassment was
"sufficiently severe or pervasive to alter the conditions of [the
victim's] employment and create an abusive working environment."
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)
(alteration in original) (internal quotation omitted); see also
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
Alfano, 294 F.3d at 373; Hawana v. City of New York,
230 F. Supp.2d 518, 532 (S.D.N.Y. 2002). Second, the plaintiff must show
a specific basis for imputing the hostile work environment to the
employer. See Alfano, 294 F.3d at 373.
To satisfy the first requirement, which is the only one disputed by the
defendant, the plaintiff must establish that "the workplace is permeated
with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the victim's
employment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d
Cir. 2000) (internal citations and quotations omitted); see also
Thompson v. Am. Eagle Airlines, Inc., No. 99 Civ. 4529, 2000 WL
1505972, at *6 (S.D.N.Y. Oct. 6, 2000). "[T]he 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." Cruz, 202 F.3d at 570 (internal quotations and citations
omitted); accord Whidbee v. Garzarelli Food Specialities, Inc.,
223 F.3d 62, 69 (2d Cir. 2000). The plaintiff must show both an
objectively hostile work environment and that the plaintiff herself
believed the environment to be hostile. Alfano, 294 F.3d at 374
(quoting Harris, 510 U.S. at 21). To determine whether the
plaintiff has met this burden, the Court will look at the totality of the
circumstances including the severity, frequency, and degree of the abuse,
whether it is physically threatening or intimidating, and whether it
unreasonably interfered with the plaintiff's work performance.
Id. (citing Harris, 510 U.S. at 23); see also
Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997);
Hawana, 230 F. Supp.2d at 532-33. Even on motions for summary
judgment, courts conduct searching reviews of harassment allegations to
determine whether the plaintiff has, as a matter of law, met "the
threshold of severity and pervasiveness." Alfano, 294 F.3d at
Under all the circumstances, the plaintiff's allegations are
insufficient to survive summary judgment. In commenting on the appearance
and customs of African Americans, and in interjecting racially based
anecdotes into her conversations with the plaintiff, Ms. Miller's actions
were `racially ignorant,
insensitive, and offensive. But the allegations do. not suggest
"that the workplace was so severely permeated with discriminatory
intimidation, ridicule, and insult that the terms and conditions of her
employment were thereby altered." Alfano, 294 F.3d at 373; see also
Schwapp, 118 F.3d at 110 (explaining that "a steady barrage of
opprobrious racial comments" rather than "sporadic racial slurs" is
required to sustain harassment claim (internal quotations omitted)). The
plaintiff has described episodic, off hand remarks that occurred
over many months and are better characterized as "mere offensive
utterance[s]" rather than "physically threatening or humiliating"
conduct. Harris, 510 U.S. at 23; see Alfano, 294 F.3d
at 374, 376 (stating that incidents must be continuous and concerted,
rather than episodic, to be deemed pervasive). The comments generally
were not personally insulting, nor were they obviously intended to
intimidate, ridicule, or demean the plaintiff on account of her race.
See Harris, 510 U.S. at 21; Alfano 294 F.3d at 376-77
(dismissing claim alleging twelve incidents of harassment and discounting
fact that boss may be "harsh, unjust, and rude").
The actions by Ms. Miller, as alleged by the plaintiff, are
insufficient to maintain hostile work environment claims against
Citibank. The single remark allegedly made by Mr. Dromm, which had no
connection to any actions by Ms. Miller and was not on
its face correlated to any racial accusation, is insufficient to
support or bolster the plaintiff's claims in any way. Similarly, the two
line excerpt about "The Life of a Slave" found on a communal
printer was not itself racially derogatory and could not reasonably be
viewed as contributing to a racially hostile atmosphere. Courts have
dismissed claims as Legally insufficient based on similar and even more
egregious conduct than alleged in this case. See Alfano, 294
F.3d at 379 (collecting cases). The defendant's motion for summary
judgment* dismissing the plaintiff's claims for a hostile work
environment based on racial harassment under Title VII, the NYSHRL, and
the NYCHRL-Counts Four, Five, and Six of the Complaint-is therefore
The defendant also moves to dismiss the retaliation claims. Title VII
prevents employers from retaliating or discriminating against an employee
who has opposed an unlawful employment practice.
42 U.S.C. § 2000e-3(a). The standards for retaliation claims under federal,
state, and local law are the same. See Coffey, 2002 WL 1610913, at *5.
To establish a prima facie case of retaliation, the plaintiff
must demonstrate that (1) she was engaged in a protected activity; (2)
the defendant was aware of this activity; (3) the defendant took adverse
action against the plaintiff; and (4) a causal connection exists
between the protected activity and the adverse action, that is, a
retaliatory motive played a part in the adverse employment action.
See id. at *4.
Under the familiar burden shifting analysis in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), once the plaintiff
makes such a showing, the burden of production shifts to the defendant to
put forth legitimate nondiscriminatory or nonretaliatory reasons for its
actions, at which point the plaintiff has the opportunity to demonstrate
that the defendant's explanations are false and that the retaliation
and/or discrimination was a motivating factor in the adverse employment
action. See, e.g., Van Zant, 80 F.3d at 714. To survive a
motion for summary judgment, the plaintiff is "obliged to produce not
simply some evidence, but sufficient evidence to support a rational
finding that the legitimate, nondiscriminatory reasons proffered by the
employer were false, and that more likely than not [discrimination] was
the real reason for the discharge." Id. (internal quotations
omitted) (alteration in original).
The ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated or retaliated against the plaintiff remains
at all times with the plaintiff. See Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981); see also Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133,
143 (2000); Fisher v. Vassar Coll., 114 F.3d 1332, 1336
(2d Cir. 1997). The Court of Appeals for the Second Circuit has
instructed that in determining whether the plaintiff has met this burden,
a court is to use a "case by case" approach that evaluates "the strength
of the plaintiff's prima facie case, the probative value of the proof
that the employer's explanation is false, and any other evidence that
supports [or undermines] the employer's case." James v. N.Y. Racing
Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (alteration in original)
(quoting Reeves, 530 U.S. at 148-49); see also Schnabel v.
Abramson, 232 F.3d 83 (2d Cir. 2000). Although summary judgment must
be granted with caution in Title VII actions "where intent is genuinely
in issue, . . . summary judgment remains available to reject
discrimination claims in cases lacking genuine issues of material fact."
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.
The defendant argues that the plaintiff cannot show causation and that,
even if a prima facie case can be made, the plaintiff cannot rebut
Citibank's legitimate nondiscriminatory reasons for terminating her
assignment. The defendant first argues that there is no causation because
the decision to terminate the plaintiff was made by Mr. Galligan, who had
no knowledge of the plaintiff's complaints. Second, it argues that Mr.
Galligan had a legitimate nonretaliatory reason: He was
mandated to cut costs, and the plaintiff was a highly compensated
employee performing a function he found was not essential. (See Galligan
Decl. ¶¶ 5-10.) The defendant contends that the plaintiff cannot show
that this reason was false and that retaliation was a motivating factor
for ending the plaintiff's employment with Citibank.
Causation may be shown either directly, through evidence of retaliatory
animus by the person who initiated the adverse action against the
plaintiff, or indirectly, by showing that the retaliatory or
discriminatory action was taken shortly after the protected activity or
by showing disparate treatment of other employees in similar
circumstances. See Gordon v. N.Y. City Bd. of Educ.,
232 F.3d 111, 117 (2d Cir. 2000); Knight v. City of New York, No. 02
Civ. 3614, 2004 WL 329862, at *7 (S.D.N.Y. Feb. 20, 2004);
Phillipeaux v. Fashion Inst. of Tech., No. 93 Civ. 4438, 1996
WL 164462, at *8-*9 (S.D.N.Y. Apr. 9, 1996), aff'd
104 F.3d 356 (2d Cir. 1996).
The plaintiff's theory of causation is that Mr. Carter, the outgoing
director of the Operations Group, arranged for the plaintiff to be
terminated in retaliation for the plaintiff's accusations against Ms.
Miller. The plaintiff was terminated April 20, 1999, approximately two
months after she complained to Ms. Henley about Ms. Miller's comments,
and over one month after
Ms. Miller had decided to resign as a result. Meanwhile, Mr.
Carter, in his deposition, acknowledged that he disagreed with the
charges against Ms. Miller and the action taken against her, and there
are indications that Mr. Carter and Ms. Miller had a close working
relationship. (See Carter Dep. at 41-43.) The plaintiff thus argues that
there is direct proof of a retaliatory motive by a decisionmaker-namely,
Mr. Carter-and indirect proof based on the temporal proximity between the
plaintiff's complaints and the termination of her assignment.
There is no evidence, however, showing that Mr. Carter was responsible
for the plaintiff's termination. By the time the plaintiff was terminated
from Citibank in April 1999, Mr. Carter had retired and the Group was
being directed by Mr. Galligan, who stated that at the time he was
unaware of any complaints made by the plaintiff and that he terminated
the plaintiff to cut costs. None of the depositions or other evidence in
the record suggest that anyone other than Mr. Galligan made the decision
to terminate the plaintiff, and Mr. Galligan swears that he made that
decision without consulting anyone else. (Galligan Decl. ¶ 8.)*fn9
The plaintiff asserts that an email exchange between Mr. Galligan and
Ms. O'Connell on March 12, 1999 proves that the
decision to terminate the plaintiff was made by Mr. Carter in
March. (See Kraft Decl. Ex. 3) The record of the exchange, in
its entirety, includes the two emails between Ms. O'Connell and Mr.
Galligan that were "cc'ed" to the vice presidents of the Group, including
Mr. Carter, Mr. Dromm, Mr. Harewood, and Ms; Miller, among others. On
March 12, 1999 at 12:51 p.m., Ms. O'Connell wrote to Mr. Galligan:
Richard as agreed to with Jack yesterday
I have arranged to get a temp to file
she will begin on Monday afternoon and will
be paid a lot! less than what we pay Paula.
Paula is dedicated to supporting me on Y2K.
As I understand it all other required secretarial
support will be provided by Audrey.
Please let me know if I have misrepresented
anything we discussed yesterday. Katy.
(Id.) That same day, at 2:07 p.m., Mr. Galligan
I think you have represented everything as we
discussed. Thanks for providing a value added
On their face, the emails involve getting a temporary clerical employee
to do filing, and they reflect that the "temp" would not be paid as much
as the plaintiff. But they do not indicate a decision to terminate the
plaintiff's assignment an action that did not occur until well over a
month after the exchange. In fact, the emails imply the plaintiff's
employment, as Ms. O'Connell plainly states that "Paula  is
dedicated to supporting me on Y2K." (Id.)
Testimonial evidence also undermines any assertion that the exchange
involved a decision to terminate the plaintiff. Ms. O'Connell, the author
of the main email, made it clear in her deposition that she was not
involved in the decision to terminate the plaintiff, was informed of the
decision by Mr. Galligan, and was upset that she lost the plaintiff's
help. (See O'Connell Dep. at 74, 88-89, 101-03.) Mr. Harewood,
who was included in the email exchange, also testified in his deposition
that he did not participate in the decisionmaking process for terminating
the plaintiff and that he was not informed of the reasons for that
decision. (See Harewood Dep. at 34-35.) Mr. Carter testified
that he has no recollection of the email exchange and was not involved in
the plaintiff's termination, which, in his understanding, occurred after
he retired. (See Carter Dep. at 23-26, 33-37.) The plaintiff has cited no
evidence in the record to contradict the testimony by Ms. O'Connell, Mr.
Harewood, and Mr. Carter.*fn10
The plaintiff's argument of causation is not supported by indirect
proof of an alleged close temporal proximity between her protected
activity and termination. "[T]emporal proximity alone is not necessarily
dispositive of a causal connection," Phillipeaux, 1996 WL
164462, at *9, and courts tend to find it sufficient only where the
temporal proximity is "`very close." Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001) (internal quotation omitted);
Knight, 2004 WL 329862, at *8.
The Court of Appeals for the Second Circuit has not set a bright
line test as to when a temporal link becomes too attenuated to
demonstrate causation. See Hawana, 230 F. Supp.2d at 530
(collecting cases). In this case, where the adverse action occurred two
months after the plaintiff's protected activity, the temporal proximity
itself is neither very close nor excessively attenuated. See
Clark, 532 U.S. 273-74 (citing cases where three or four
month time span was insufficient to
make prima facie case of causation); Hawana, 230 F. Supp.2d
at 530 (comparing cases where adverse action occurred twenty days or
less after protected activity with case at hand, where protected activity
occurred two years before alleged retaliation). But under all the
circumstances of this case, the timing of the decision to terminate the
plaintiff's assignment does not imply retaliation because the plaintiff's
assignment was terminated after the people with an alleged retaliatory
motive-namely, Ms. Miller and Mr. Carter-had left Citibank. See
Phillipeaux, 1996 WL 164462, at *9 (finding that although temporal
proximity was not itself too attenuated, in context, it did not suggest
retaliation). Mr. Galligan, who made the decision to terminate the
plaintiff's assignment has declared under oath that he was unaware of the
plaintiff's complaints at the time of his decision. The plaintiff has not
provided any basis for discrediting Mr. Galligan, and it simply makes no
sense that Mr. Carter imposed a decision on Mr. Galligan, who then waited
almost six weeks to carry out the plaintiff's discharge. See Knight, 2004
WL 329862, at *8 (criticizing claim where supervisors who allegedly
retaliated against plaintiff were not in his group when underlying
harassment and complaint occurred).
The plaintiff, therefore, cannot state a prima facie case for
retaliation because there is no direct or indirect evidence
connecting a retaliatory motive to the decision to terminate the
plaintiff's assignment. See, e.g., Hollander v. Am. Cyanamid
Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (finding no "causal nexus" where
defendant allegedly wrote retaliatory letter to block plaintiff's
application with prospective employer, but where prospective employer did
not attribute its refusal to hire plaintiff to anything done by
defendant); Phillipeaux, 1996 WL 164462, at *8-*9.
Even if the plaintiff could state a prima facie case, the defendant has
proffered legitimate, nonretaliatory reasons that the plaintiff has
failed to rebut. Mr. Galligan has declared that he made the decision to
terminate the plaintiff because of his mandate to cut costs. He stated
that the plaintiff was a very highly compensated temporary clerical
employee who did not provide any unique or essential skills. (See
Galligan Decl. ¶¶ 5-8.) Moreover, in his understanding, the plaintiff
was providing support primarily for Ms. O'Connell on the Y2K project, and
Ms. O'Connell and the rest of the Group were being transferred to the
offices in Connecticut. (Id. ¶¶ 4, 7.)
The plaintiff has responded primarily by claiming that her job
functions were more diverse than simply working for Ms. O'Connell and
that she was never asked to resume working at her previous salary of
$20.00 per hour. (See Hill Decl. ¶¶ 3-6.)
But the plaintiff was a temporary employee whose primary function
was ending, and her assignment was terminated against the backdrop of new
management seeking to cut costs by, among other things, reducing
personnel. (See Galligan Decl. ¶¶ 5, 8, 10). While the
plaintiff cites deposition testimony that other temporary workers sat at
the cubicle that the plaintiff had occupied (see Harewood Dep.
at 45-46), there is no evidence that the plaintiff was replaced by
another temporary employee who assumed the same or similar job functions.
(See Galligan Decl. ¶ 10; O'Connell Dep. at 102-04 (testifying that
she complained about plaintiff's absence and fact that she had "a lot of
work to do on my own").) Nothing contradicts the basic cost
cutting rationale, which is actually supported by the emails cited by the
plaintiff (see Kraft Decl. Ex. 3.), nor is there any evidence that
retaliation was a motivating factor behind Mr. Galligan's decision.
See, e.g., Van Zant, 80 F.3d at 714 (affirming summary judgment
dismissal where employer offered "valid, unrebutted reasons for its
actions" and plaintiff "put forward nothing other than conclusory
allegations to suggest a causal relationship" between harassment
complaints and negative evaluations or her termination); Pace v.
Ogden Servs. Corp., 692 N.Y.S.2d 220, 224 (App. Div. 1999) (finding
evidence of legitimate nondiscriminatory reason for plaintiff's discharge
case under NYSHRL, where employer investigated cost cutting
measures and decided to outsource work performed by plaintiff).
The plaintiff cannot show a causal connection between her complaints
and the termination of her assignment, and no reasonable jury could find
that Citibank's legitimate, nondiscriminatory reasons were not the true
reasons for its actions and that retaliation was a motivating factor in
the termination of the plaintiff's employment. Citibank's motion for
summary judgment dismissing the retaliation claims on the merits under
federal, state, and local law is therefore granted.
For the reasons explained above, the motion for summary judgment
dismissing all claims against the defendant Citibank is granted. The
Clerk is directed to enter Judgment dismissing the Complaint and closing