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May 12, 2004.


The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


Plaintiff Ina Norris ("plaintiff or "Norris") brought this action against her former employer, the New York City Housing Authority ("defendant" or "NYCHA"), alleging discriminatory treatment, termination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.*fn1 Defendant moved for summary judgment. Defendant's motion is granted for the reasons set forth below. BACKGROUND*fn2

Norris' NYCHA Employment History

  Norris, an African-American woman, was hired in October 1987 by NYCHA, a public authority responsible for providing and overseeing housing services for low-income New York City residents. (56.1 ¶ 3.) Her first position with NYCHA was as an employment coordinator for the Basic Employees Skills Training Program within the Social and Community Services Department. (56.1 ¶ 5.) In July 1993, Norris transferred to NYCHA's Department of Equal Opportunity ("DEO") where, as a Community Coordinator, her job was to investigate and resolve complaints of discrimination made by NYCHA employees. (56.1 ¶¶ 9-10.) In late 1995 or early 1996, Norris transferred again, this time to the Community Operations Department, which had been newly formed from the merger of the Community Affairs and Social and Community Services Departments. (56.1 ¶¶ 32-37.) Her new position made Norris responsible for day-to-day supervision of a cluster of about six senior and community centers in the North Bronx operated or sponsored by NYCHA, and involved visiting the centers, acting as a liaison between NYCHA and tenant associations, assisting with tenant association elections, and providing information and assistance to the centers. (56.1 ¶¶ 38-39, 43-46, 48-57.) Morris worked for the Community Operations Department until March 2000, when her employment was terminated. (56.1 ¶ 189.)

 Norris' Disciplinary History at NYCHA

  Morris' work habits and performance began to meet with disapproval from her supervisors during her tenure at DEO. Moms' direct supervisor counseled and reprimanded her in late 1994 and 1995 for frequent lateness and excessive use of the telephone for personal calls, and expressed concern to Norris about the quality of her work, the need for Norris to complete her work more quickly, and her failure to comply with certain workplace procedures. (56.1 ¶¶ 11, 23-25.) In March 1995, the director of DEO wrote a memo to NYCHA's director of personnel, requesting that a General Trial*fn3 be scheduled for Norris, because Norris "lack[ed] the skills to competently perform the duties of the position of Investigator." (56.1 ¶ 26.) However, Norris transferred to the Community Operations Department before a General Trial was scheduled.

  Disciplinary problems first arose for Norris in her employment at Community Operations when, in April 1997, Norris and three co-workers left the Bronx Borough Office together at lunchtime and were absent for several hours without authorization. The Director of the Bronx Borough Office, Ernesto Lozano ("Lozano"), conducted an investigation of the incident and issued disciplinary memoranda to the employees involved for claming to have worked hours they did not actually work and, further, for disregarding directives to spend time that day recruiting participants for a literacy pilot program. (56.1 ¶¶ 86-92.)

  In late 1997 or early 1998, Lozano and his deputy reorganized the Bronx Borough Office. Norris, who had been assigned to work under the supervision of a Borough Administrator, Ana Diaz Brewster ("Brewster"), was reassigned to a different Borough Administrator, Maggie Moats ("Moats"), an African-American woman. (56.1 ¶¶ 111-115.) According to Lozano, one of the reasons for the reassignment was that Norris required closer supervision and had resisted working at her assigned community center away from the main office. (56.1 ¶¶ 103-12.) After her reassignment, Norris' job responsibilities remained essentially the same. (56.1 ¶¶ 116-121.) Within a short period of time, her work habits became subject to mounting criticism from Moats. In a memo dated August 3, 1998, Moats reprimanded Norris regarding a confrontation between the two at the Bronx Borough Office on July 29, 1998. The memo describes Moats' encountering Norris in the office after having instructed her to report to her work site at the community center. After some time had passed and Norris still had not left the office for her work site, the memo recounts,
I informed you that there was no work for you to do at the Borough Office and that it was time that you report to your site. Before I could finish, you flew into a tirade, shouting that you were not a child and that you would report to your site upon the completion of your task. You continued to raise your voice, shouting and accusing me of harassing you. The behavior you displayed in front of the Summer Seasonals and co-workers was insubordinate, in poor taste, and unprofessional to say the least . . . and will not be tolerated.
(56.1 ¶ 126; Moats Aff. Ex. B.) Moats wrote another memo to Norris, dated August 4, 1998, stating:
You failed to submit your weekly schedule . . . [, which] must reflect dates, times and sites you plan to visit; daily visits to different sites (sponsored and Authority operated). . . . You have also failed to submit narratives on your findings at each site visit. The purpose of site visits is to document any issues, findings and/or concerns. To date, I have not received one narrative from you.
(56.1 ¶ 127.)
  Another memo from Moats to Norris, dated August 7, 1998, stated:
You are hereby charged with failure to adhere to directives [about maintenance and submission of your timecard]. Your overt, insubordinate attitude/behavior, continuous failure to adhere to and blatant disregard for directives and/or mandates will undoubtedly result in disciplinary action.
(56.1 ¶ 128.)

  At a meeting between Moats and Norris on September 10, 1998, Moats informed Norris of the need for better communication between the two and the need for Norris to follow NYCHA policies and procedures and Moats' directives. (56.1 ¶ 133.) Following that meeting, Moats sent three more memos to Norris between September 30 and November 9, reprimanding Norris for failing to submit assignments, being absent from her worksite without authorization, and failing to submit weekly schedules. (56.1 ¶¶ 134-136.) In a "Memo to the File" dated November 24, 1998, Moats described a November 23 telephone conversation with Norris during which Moats asked Norris to provide a doctor's note to justify an absence from work, after which Norris raised her voice and "screamed, `I will not let you stress me, I am not going to be harassed by you. I'm sick and tired of you. I will never work with you, never.'" (56.1 ¶ 138.) Finally, on December 22, 1998, Moats recommended to Lozano that a General Trial hearing be scheduled against Morris based on charges of incompetence and misconduct, which Lozano approved but did not direct. (56.1 ¶ 139.)

 Administrative Proceedings

  On or about February 10, 1999, NYCHA preferred multiple charges against Morris for incompetence and misconduct (56.1 ¶ 141). During 1999, a hearing ("General Trial") was held pursuant to section 75 of the New York Civil Service Law (which requires that a civil service employee be found guilty of charges of "incompetency or misconduct" in a full hearing before an impartial hearing officer before her employment may be terminated). (56.1 ¶ 142.) At the General Trial, which lasted approximately nine days, Norris was represented by counsel, who presented witnesses and submitted evidence on her behalf (56.1 ¶¶ 143-144.) Norris testified at the General Trial that she believed that Moats took disciplinary action against her in retaliation for a memo Norris wrote to a NYCHA officer, asking to be assigned to a different supervisor. (56.1 ¶ 145.)

  The hearing officer, after reviewing all the evidence, found that:
[Norris] has been found guilty of all the charges brought against her. . . . [T]he most serious involves her failure to oversee operations at the Community Centers assigned to her, her failure to meet and consult with Community Center staff, and her failure to conduct regular site inspections satisfactorily. Simply stated, she did not do her job. In addition, she has shown a cavalier attitude toward the job and her superiors. It is clear from the evidence that she cannot take direction or follow instructions. She exhibits a devil-may-care attitude. I seriously doubt she will improve or change her ways.
(Def. Mem. 7.) In a fifty-six-page Report and Recommendation dated March 1, 2000, the hearing officer recommended dismissal, which recommendation was adopted by the NYCHA Board. (56.1 ¶ 146-188.) Pursuant to that finding, Norris' employment was terminated effective March 29, 2000. (56.1 ¶ 189.) Norris, through the union of which she was a member, Social Service Employees Union Local 371 ("Union"), appealed the hearing officer's decision to the New York City Office of Collective Bargaining, and the appeal was submitted to arbitration. (56.1 ¶ 190.) On September 21, 2002, the arbitrator issued an award sustaining the hearing officer's decision in all respects, concluding that she was "compelled to find that [Norris simply[,] repeatedly, and continuously failed to follow her Supervisor's ongoing and specific directives." (56.1 ¶¶ 191-192.) The arbitrator went on to identify elements of the record upon which her decision was based. She noted that the record reflects that "at least eleven (11) verbal and/or written warnings [were] given to [Norris]," but that "the same type of issues continued to occur, notwithstanding these explicit prohibitions involving her absenteeism and chronic lateness." (56.1 ¶ 193.) She observed that "the record is replete with [Norris'] failure to appear at various community centers and coordinate projects, a significant duty of a Community Coordinator," and agreed with the trial officer that Norris' "failure to do what she was paid to do is a pivotal reason" for the decision to terminate her employment. (56.1 ¶ 194.) She stated that "one of the more troubling charges was the incidents of July 29, 1998 and November 23, 1998" and declared, "This Arbitrator simply cannot condone rude, insubordinate behavior exhibited toward any supervisor, irrespective of one's provocation." (56.1 ¶ 195.) Noting that the standard arbitrators must apply in reviewing the recommendations of trial officers is the "substantial evidence" standard, the arbitrator concluded that "all six (6) Charges were substantiated, based upon the totality of the massive and repetitive evidence against [Norris]"; that the trial officer's findings were not arbitrary or capricious, but based on substantial evidence; and that "the determination for dismissal was lawful, proper and based on the preponderance of evidence as substantiated by [Norris'] egregious misconduct." (56.1 ¶¶ 196-197.)

  On or about December 10, 2002, the Union filed a Petition to Vacate the arbitral award, pursuant to Article 75 of the New York Civil Practice Law and Rules. (56.1 ¶ 198.) In a decision dated February 24, 2004, the New York Supreme Court, New York County (Braun, J.), declined to vacate the award and instead confirmed it. (Soc. Serv. Employees Union Local 371 v. New York City Hous. Auth., Index No. 127145/02.)

 Norris' Complaints of Discrimination Against NYCHA and Its Employees

  On March 12, 1998, Norris filed a verified complaint with the New York City Commission on Human Rights ("NYCCHR") against NYCHA, Lozano, and two other NYCHA employees: Eunice Marchiselli, the Deputy Director of the Bronx Borough Office of the Community Operations Department and Lozano's direct subordinate ("Marchiselli"); and Irving Anglada, an investigator with the DEO ("Anglada"). (56.1 ¶ 200.) In her complaint (as amended March 26, 1998), Norris alleged that that Lozano made disparaging remarks about a group of African-American women in Norris' presence; that Anglada subjected Norris to disparate treatment by aggressively attempting to discourage her from testifying in three complaints of workplace discrimination by NYCHA employees; that Lozano and Marchiselli subjected Norris to disparate treatment because of her race and gender, and because of her complaints about discriminatory practices of NYCHA employees. (56.1 ¶¶ 201; Decl. of Corina L. Leske in Supp. of Def.'s Mot. for Summ. J. ("Leske Decl."), Ex. K.) In June 1999, Norris wrote a memo to the DEO, alleging that she had been discriminated against in violation of the Pregnancy Discrimination Act's amendment to Title VII, and sent a copy of the memo to the NYCCHR. (56.1 ¶¶ 202-203.) The DEO informed Morris in July 1999 that it would defer its investigation of the allegations contained in the memo to the NYCCHR. (56.1 ¶¶ 204.) In March 2002, the NYCCHR dismissed Morris' complaint, finding a lack of probable cause in light of Norris' termination for cause in March 2000 following the General Trial and Norris' "documented history of poor work performance with NYCHA." (56.1 ¶¶ 205-206.) The EEOC adopted the NYCCHR's findings. (56.1 ¶¶ 207.)

 The Instant Allegations

  In the instant amended complaint, Norris alleges violations of Title VII*fn4 and 42 U.S.C. § 1981*fn5 based on the same facts of discriminatory treatment as contained in her amended verified complaint to the NYCCHR. (Compl. ¶¶ 14-21.) In addition, Norris alleges further discriminatory treatment, including retaliation at the hands of Moats ("and with the knowledge and/or at the direction of Lozano") for her filing of the NYCCHR complaint, and the termination of her employment for discriminatory reasons. (Compl. ¶¶ 23, 25-26.) The treatment Norris complains of includes (1) Lozano's and Marchiselli's telling Norris' co-workers that she was a "troublemaker" and could not be trusted, and instructing them not to go to lunch with her, whereas non-African-American employees and/or male employees were not so treated (Compl. ¶ 14, 16); (2) Lozano's and Marchiselli's failing to provide Norris with adequate training and orientation, whereas non-African-American employees and/or male employees were not so treated (Compl. ¶ 14); (3) Lozano's and Marchiselli's withholding work-related transportation services from Norris, whereas non-African-American employees and/or male employees were not so treated (Compl. ¶ 16); (4) Lozano's making disparaging remarks in reference to a group of African-American women in Norris' presence (Compl. ¶ 15); (5) Lozano's and Marchiselli's falsely charging Norris with "misuse of NYCHA's time" and maintaining a disorderly office, and preventing Norris from using certain office equipment outside her immediate workplace, in retaliation for filing the NYCCHR complaint (Compl. ¶ 21); and (6) Moats' falsely reporting that Norris was absent from work, violating NYCHA procedures in order to harm Norris, and falsifying Norris' time sheets to harm Norris (Compl. ¶ 23). In addition to the foregoing, the amended complaint alleges that Norris' termination in March 2000 following her General Trial was "without good cause" and constitutes an act of discrimination and retaliation. (Compl. ¶¶ 25, 26, 36.)


 A. Summary Judgment Standard

  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R.Civ.P. 56(c)). In reviewing the record, the district court must assess the evidence in "a light most favorable to the nonmoving party" and resolve all ambiguities and "draw all reasonable inferences" in its favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

  An alleged factual dispute between the parties will not by itself defeat a motion for summary judgment, since "the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Id. at 256; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A fact issue is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 248). "A fact is `material' if it might affect the outcome of the suit under governing law." Id. (quoting Anderson, 477 U.S. at 248).

  Summary judgment in an employment discrimination action is appropriate where a plaintiff has "`failed to demonstrate that the defendant's asserted reason for [its adverse employment action] was pretextual.'" Umpierre v. SUNY Brockport, No. Civ. A. 95CV887RSPDS, 1997 WL 599314 (N.D.N.Y. Sept. 26, 1997) (quoting Holt v. KMl-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996)) (alteration in original); see also Chertkova v. Conn. Gen. Life Ins., 92 F.3d 81, 92 (2d Cir. 1996) ("[T]o defeat a defendant's properly supported motion for summary judgment, a plaintiff must show that there is a material issue of fact as to whether (1) the employer's asserted reason for discharge is false or unworthy of belief and (2) more likely than not the [unlawful basis] was the real reason for the discharge.") (alteration in original). Because employment discrimination actions often present factual issues as to the presence or absence of discriminatory intent that are not appropriately resolved at the summary judgment stage, courts must ...

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