United States District Court, S.D. New York
October 6, 2005.
JACQUELINE LENNON, Plaintiff,
NYC; NYC HEALTH AND HOSPITALS CORP.; KINGS COUNTY HOSPITAL; GEORGE PROCTOR; PETER GRIFFITH; and JEAN LEON, Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendants New York City ("the City"), New York City Health and
Hospitals Corporation ("HHC"), Kings County Hospital Center
("KCHC"), George Proctor ("Proctor"), Peter Griffith
("Griffith"), and Jean Leon ("Leon") (collectively, the
"defendants"), have moved for summary judgment pursuant to Rule
56, Fed.R.Civ.P., to dismiss the complaint of plaintiff
Jacqueline Lennon ("Lennon"). For the reasons set forth below,
the motion is granted in part and denied in part.
Lennon, a Senior Associate Director formerly employed by HHC,
filed her complaint on April 8, 2003 alleging employment
discrimination pursuant to Title VII,*fn1 the New York State
Human Rights Law ("SHRL"),*fn2 the ADEA,*fn3 and
ADA,*fn4 based on her race ("American Black"), national
origin (African-American), age (56 in 2004) and purported
disability (fibromyaligia), contending that her staff was involuntarily transferred, that her department was
downsized, and that she was denied a promotion and terminated.
Discovery proceeded and the instant motion was heard and marked
fully submitted on March 23, 2005.
The facts are set forth in the Local Rule 56.1 statements of
the parties and are undisputed except as noted below.
Lennon graduated from Bronx Community College, Baruch College,
and Fordham University (Master of Science). She began working at
the HHC in 1982 and worked at Harlem Hospital, Woodhull Hospital,
and Lincoln Hospital.
On August 11, 1998, Lennon applied for the position of
Executive Assistant to the Executive Director at Woodhull
Hospital with HHC, and on October 26, 1998, she was appointed to
this position. She received Woodhull's new employee handbook,
HHC's Equal Employment Opportunity Policy, and notice that as a
Group II (managerial) employee she would not be covered by the
collective bargaining agreement.
In January 1999, Lennon, who alleges she was then 51 years old,
applied for the position of Senior Associate Director in Media Relations and Marketing at KCHC as a result of a posting.
She was recruited and hired for this position by Leon. At the
time, Leon was 55, and she testified that her race and national
origin was black Trinidadian. Lennon testified that "Jean Leon,
the executive director at Kings County Hospital asked that I
apply for the marketing position at Kings County Hospital."
Proctor, who interviewed Lennon, was 46 years old at the time
of recruitment and is an African-American.
Lennon was formally promoted to the position of Senior
Associate Director of Media Relations and Marketing at KCHC by
HHC on or about February 8, 1999, received a 15% salary increase,
and was again informed that as a managerial employee she would
not be covered by the collective bargaining agreement.
Lennon's supervisor in February of 1999 was Proctor
(African-American), who was Chief Operating Officer/Chief
Financial Officer for the Brooklyn/Staten Island network, a
network of HHC facilities in Brooklyn and Staten Island.
Lennon received an annual evaluation for the period from July
1, 1999 to June 30, 2000 from her supervisor Proctor and her
performance was rated "satisfactory." This evaluation was
reviewed by Leon. According to the evaluation, Lennon needed to
improve her delegation of functions and activities to staff, to
improve her coordination with other departments, and to increase broad
Lennon received an annual evaluation for the period from July
1, 2000 to June 30, 2001 from her supervisor Proctor. Her
performance was rated "satisfactory" and the evaluation was
reviewed by Leon.
Lennon has testified that she has fibromyaligia, which she
describes as a stress related illness that results in pain in her
joints and muscles, and that she takes Tramadol, Ibuprofen, and
Tripalmitin to control her fibromyaligia.
In 2001 she was given permission by Proctor to attend physical
therapy two to three times a week in the mornings. Proctor
believed Lennon had back pains and some form of carpal tunnel
syndrome. Lennon requested, and was given, a special chair, back
rest and other ergonomic furniture for her alleged illness.
Lennon testified that fibromyaligia did not prevent her from
functioning at KCHC or at her present job at State University of
New York Downstate Hospital as Director of Marketing.
In 2001 Lennon's department consisted of no more than five to
six people which included Frisnert Benoit, James Hoban, Duane
Chandler, and Deborah Souviner. In 2001 Leon and Proctor testified that they decided to
restructure the media relations and marketing department by
increasing the community outreach and business development aspect
of the department. According to Leon and Proctor, they believed
that an Associate Executive Director position should be created
to oversee the department.
In February 2001, the position of Associate Executive Director
of Media, Marketing, Community Relations and Business Development
at KCHC was posted. Lennon applied and was interviewed for the
position. She testified that she was told not to apply by Proctor
and that she was interviewed by Proctor and Ms. Brown, who was
from the Caribbean.
Griffith, a black male of Trinidadian national origin, also
applied for the position. Lennon testified that Griffith "might
be 40." Donald LaHuffman, an African-American in his 30's, also
applied for the position and was interviewed.
Proctor testified that he believed that Griffith was the most
qualified candidate because "[l]ooking at his resume, he did
extensive community outreach in the D.A.'s office and the
business development. He had formed various linkages with
merchants, associations . . . that was the strategic decision
that we wanted." On August 6, 2001, Griffith was appointed to the position of
Associate Executive Director of Media, Marketing, Community
Relations and Business Development at KCHC.
Griffith replaced Proctor as Lennon's supervisor on or about
August 2001 and reported directly to Leon.
By memorandum dated September 19, 2001, Lennon, Deborah
Souvenir, and Duane Chandler were informed by Griffith that he
was conducting a departmental audit and to complete this audit he
needed a detailed list of their current major tasks/functions and
an updated resume.
By memorandum dated October 9, 2001, Duane Chandler and Lennon
were informed by Griffith that they were required to submit
reports for each event and/or meeting attended and an activity
report for each month.
By memorandum dated October 18, 2001, Lennon was informed of
"changes to committee assignments" by Griffith and also was
informed that Griffith was "currently assessing existing staff
duties as part of a department-wide audit and reorganization."
By memorandum dated January 7, 2002, Lennon's department was
reminded that the department's name had been changed from Media
Relations and Marketing to "Office of Communications and Business Development" to reflect the new emphasis on the community
outreach and business development aspect of the department. On
February 13, 2002, Griffith received a six month evaluation from
Leon describing the reorganization of the department.
By letter dated February 15, 2002, Lennon was notified by
Harold S. Goldstein, Associate Executive Director, that she was
terminated from her position as Senior Associate Director at KCHC
as a result of the reorganization and management restructuring to
the department. According to this letter, once the restructuring
was completed, the level of her position was no longer needed.
Lennon testified that Griffith lacked experience and education.
She also testified that because of her national origin, she was
excluded by Leon from meetings where marketing had a major role,
that Leon would ask other people to chair hospital events, and
that African Americans were not favored where Trinidadians were.
She also testified that when Griffith was hired, Duane Chandler,
Leon's stepson, was placed in Lennon's office, and that she had
no supervision over him. According to Lennon, Chandler was a
young man in his twenties of Caribbean descent who did marketing.
She testified that he did much of her work, often duplicating her
efforts, and that he invaded her computer.
Lennon testified that Proctor discriminated against her by
making her do too much work. According to her, she worked for six months with no help and that she sent in a staffing plan that
was never reviewed. She also testified that Leon hired much
younger people, including Griffith and James Hobbins, and that
Griffith bombarded her with memos, belittled her by this method,
and interfered with Lennon's relationships with vendors. Lennon
also alleges that Juliet Barnes, an African American, was forced
out by Leon.
Griffith took Ms. Souvenir, Lennon's secretary, and removed her
from Lennon's office and placed her in his. According to Lennon,
Griffith favored younger men, such as Duane Chandler, James
Hobbins, and Benoit, who was from Haiti (the Caribbean).
As a result of transfers, Lennon testified that she had more
work and no help or assistance and even had to take minutes for
meetings. According to Lennon, she discussed fibromyaligia with
KCHC and was told they were hiring someone else.
In accordance with her rights as a managerial employee under
Corporate Operating Procedure 20-39, Lennon appealed her
termination; the appeal was reviewed by Leon, and by letter dated
March 12, 2002, Leon informed Lennon that the decision to
terminate her services would not be reversed. According to Leon,
she found the "reorganization of the Media Relations Department
to be efficient and managerially sound." Leon Letter 3/12/02. During her employment at HHC, Lennon attended yearly in-service
training where she was informed of the EEO/Affirmative Action
policy which included information about the ADA and she testified
that she did not file any discrimination complaints with the KCHC
EEO office regarding her claims of discrimination.
On June 18, 2002, Lennon filed a charge of discrimination with
the NYSDHR, which was simultaneously filed with the Equal
Employment Opportunity Commission. According to the complaint,
Lennon claimed discrimination based on her age, race, national
origin and disability. By letter dated January 27, 2003, Lennon
was issued a right to sue letter as a result of a request from
On or about March 11, 2003, the NYSDHR issued a no probable
cause determination after an investigation of Lennon's claims,
finding that "half of the twenty Associate Directors and Senior
Associate Directors employed by respondent at [plaintiff's] work
location from January of 2000 to June of 2002 were of the same
race as complainant, and a majority were of the same sex and
national origin as complainant." Determination and Order after
Investigation, 3/07/03, p. 1. The Summary Judgment Standard
Pursuant to Rule 56, summary judgment may be granted only if
there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. See Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); SCS Communications, Inc. v.
Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004). The court
will not try issues of fact on a motion for summary judgment, but
rather, will determine "whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Summary judgment is appropriate where the moving party has
shown that "little or no evidence may be found in support of the
nonmoving party's case. When no rational jury could find in favor
of the nonmoving party because the evidence to support its case
is so slight, there is no genuine issue of material fact and a
grant of summary judgment is proper." Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir.
1994) (internal citations omitted). If, however, "`as to the
issue on which summary judgment is sought, there is any evidence
in the record from which a reasonable inference could be drawn in
favor of the opposing party, summary judgment is improper.'"
Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc.,
391 F.3d 77, 83 (2d Cir. 2004) (quoting Gummo v. Village of Depew,
75 F.3d 98, 107 (2d Cir. 1996)).
The moving party has the burden of showing that there are no
material facts in dispute, and the court must resolve all
ambiguities and draw all reasonable inferences in favor of the
party opposing the motion. Bickhardt v. Ratner,
871 F. Supp. 613 (S.D.N.Y. 1994) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Thus, "summary
judgment may be granted if, upon reviewing the evidence in the
light most favorable to the non-movant, the court determines that
there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law." Richardson v. Selsky,
5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the
suit under the governing law," and a dispute about a genuine
issue of material fact occurs if the evidence is such that "a
reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane,
112 F.3d 54, 57 (2d Cir. 1997).
"The salutary purposes of summary judgment avoiding
protracted, expensive and harassing trials apply no less to
discrimination cases than to commercial or other areas of
litigation." Nicastro v. Runyon, 60 F. Supp. 2d 181, 183 (S.D.N.Y. 1999)
(citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114
(2d Cir. 1988)). Greater caution must be exercised, however, in
granting summary judgment in employment discrimination cases
where the employer's intent is genuinely in issue. Belfi v.
Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). This is so
because "employers are rarely so cooperative as to include a
notation in the personnel file that the [action complained of] is
for a reason expressly forbidden by law." Bickerstaff v. Vassar
College, 196 F.3d 435, 448 (internal quotation marks and
citation omitted; brackets in the original). But even where an
employer's intent is at issue, "a plaintiff must provide more
than conclusory allegations of discrimination to defeat a motion
for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106,
110 (2d Cir. 1997); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.
Pre-August 2001 Claims Are Time-Barred
A Title VII plaintiff must file a complaint with the EEOC
within 180 days of when she knew or had reason to know of the
alleged unlawful employment action or, if she has already filed a
charge with the relevant state or local equal employment agency,
within 300 days of that action. See 42 U.S.C. § 2000e-5(e);
Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712-13 (2d
Cir. 1996); Cornwell v. Robinson, 23 F.3d 694, 703-04 (2d Cir.
1994) (citations omitted). If a plaintiff fails to meet the
applicable statute of limitations her claim will not be actionable in
federal court. See Cornwell, 23 F.3d at 703-04. The Supreme
Court, in its most recent decision on the matter, has reiterated
that "strict adherence" to the statute of limitations is
mandated. See National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 108 (quoting Mohasco Corp. v. Silver,
447 U.S. 807, 826 (1980)).
There is a continuing-violation exception to the statute of
limitations which "extends the limitations period for all claims
of discriminatory acts committed under an ongoing policy of
discrimination even if those acts, standing alone, would have
been barred by the state of limitations." Quinn v. Green Tree
Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (internal
quotation marks and citation omitted). A continuing violation may
be found "where there is proof of specific ongoing discriminatory
policies or practices, or where specific and related instances of
discrimination are permitted by the employer to continue
unremedied for so long as to amount to a discriminatory policy or
practice." Cornwell, 23 F.3d at 704. However, "discrete
incidents of discrimination that are not related to
discriminatory policies or mechanisms may not amount to a
continuing violation." Id. Moreover, it has been frequently
noted that the continuing violation doctrine is disfavored in
this Circuit and will be applied only upon a showing of
compelling circumstances. See, e.g., Katz v. Beth Israel
Med. Ctr., 2001 U.S. Dist. LEXIS 29, No. 95 Civ. 7183, 2001 WL
11064, at *8 (S.D.N.Y. Jan. 4, 2001); Findlay v. Reynolds Metals Co., Inc., 82 F. Supp. 2d 27, 37 (S.D.N.Y.
2000) (collecting cases).
Lennon filed her charge of discrimination with the NYSDHR/Equal
Employment Opportunity Commission ("EEOC") on June 18, 2002.
Title VII, ADEA, or ADA claims regarding incidents which occurred
prior to August 22, 2001, i.e., 300 days prior to her filing
are time-barred. 42 U.S.C. § 2000305(e)(1) (Title VII);
29 U.S.C. § 626(d); see 42 U.S.C. § 11217(a); Tewksbury v. Ottaway
Newspapers, Inc., 192 F.3d 322, 328-29 (2d Cir. 1999);
42 U.S.C. § 2000e-5(e)(1) (2000) (300 day limitations period applies to ADA
claims); Hawana v. City of New York, 230 F. Supp. 2d 518, 525
(S.D.N.Y. 2002) (300 day limitations period applies to Title VII,
ADEA, and ADA claims).
Lennon's claim that the defendants committed continuous acts of
harassment and a continuous pattern of race and disability
discrimination, and that therefore the continuing violation
exception should be applied, also must fail.
First, certain of the acts Lennon has cited are discrete acts.
Lennon's opposition memorandum alleges that she was wrongfully
denied a promotion. In National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 108 (1980), the Supreme Court explicitly
stated that a failure to promote is a discrete act for
limitations purposes. Morgan at 108. The remaining acts charge that Lennon was subjected to a
hostile environment. However, this claim was not presented to the
administrative agency, and therefore this Court lacks subject
matter jurisdiction over it. Brown v. Coach Stores, 2000 U.S.
Dist. LEXIS 12604, *7-8 (S.D.N.Y. 2000). See also Kent v.
Avco Corp., 815 F. Supp. 67 (D. Conn. 1992) (dismissing parts of
plaintiff's complaint he did not mention denied promotions, low
wages or inadequate secretarial services in his EEOC complaint,
although all his claims were based on the theory of age
In addition, the discrete acts that Lennon contends show that
she was discriminated against are not supported by any evidence
of any specific policy or mechanism for discrimination in place.
See Ofudo v. Barr Lab., Inc., 98 F. Supp. 2d 510, 515
(S.D.N.Y. 2000). Nor has she produced any evidence of specific
and related instances that HHC allegedly permitted to continue
unremedied for an overly long period. Id. Lennon has not cited
to any other similarly situated African-Americans who have been
discriminated against except for a single conclusory statement
that lacks any other support in the record beyond her allegation.
See P. Opp. at pp. 14 (alleging only that a particular person,
whom plaintiff contends was African-American, "suffered at the
hands" of a single individual defendant). These conclusory
allegations of a continuing violation will not suffice to fulfill
the pleading requirement of a continuing violation. See
Alveari v. A. Int'l Group, Inc., 590 F. Supp. 228, 231 (S.D.N.Y. 1984). She also
concedes that she did not bring to her employer's attention the
discriminatory treatment she was allegedly subjected to.
Therefore, the claims relating to conduct occurring before
August 22, 2001, including Lennon's denial of promotion claim
that accrued on June 6, 2001, are time-barred.
The Claims Against The City, The Individual Defendants, And
HHC Are Dismissed
Lennon has alleged claims against KCHC, HHC, the City, and
certain individuals. With respect to her claims against the City,
it is undisputed that the City did not employ Lennon.
Furthermore, New York courts have expressly held that the City is
a separate legal entity from HHC. See Haynes v. Giuliani,
238 A.D.2d 257 (1st Dep't. 1997) (HHC is an entity separate and
distinct from the City of New York with "complete autonomy
respecting its personnel."); Binyard v. City of New York,
151 A.D.2d 712 (2d Dep't. 1989) (HHC is a separate and distinct
entity from the City of New York); Williams v. City,
97 A.D.2d 372 (1st Dep't. 1983) (City of New York is not proper party in an
action against HHC, which is a separate and distinct entity).
See also Brennan v. City, 59 N.Y.2d 791 (1983) (HHC is a
public benefit corporation independent of the City of New York
and is not an agency of the City of New York). The only allegations of mistreatment that Lennon makes in the
complaint are directed to HHC, KCHC, and three of its employees.
In the absence of any allegations directed to the City, it is
The claims against the individually named defendants are also
dismissed. It is well-settled that individuals may not be held
personally liable under Title VII. Tomka v. Seiler Corp.,
66 F.3d 1295, 1317 (2d Cir. 1995), abrogated on other grounds,
Burlington Indus., Inc. v. Ellerth, 524 U.S. 1742 (1998). In
addition, the individually named defendants cannot be held liable
under the ADEA. Parker v. Metropolitan Transportation
Authority, 97 F. Supp. 2d 437, 452 (S.D.N.Y. 2000). Although the
Second Circuit has yet to expressly rule on the issue, district
courts have held that individually named defendants cannot be
personally liable under the ADA. See, e.g., Cerrato v.
Durham, 941 F. Supp. 388, 395 (S.D.N.Y. 1996); Gentile v. Town
of Huntington, 288 F. Supp. 2d 316, 322 (E.D.N.Y. 2003); Altman
v. New York City Health and Hospitals Corp., 903 F. Supp. 503,
508 (S.D.N.Y. 1995), aff'd, 100 F.3d 1054 (2d Cir. 1996); Yaba
v. Caldwalader, Wickersham & Taft, 931 F. Supp. 271, 274
(S.D.N.Y. 1996) (all rejecting individual liability under the
ADA). Accordingly, Lennon's Title VII, ADEA, and ADA claims
against Proctor, Leon, and Griffith are dismissed. Lennon's claims against HHC are also dismissed. HHC is not
liable for any claims made by Lennon because HHC did not have
knowledge of the alleged actions or inactions by Proctor,
Griffith, or Leon, nor was it reasonable for HHC to have had such
knowledge. Burlington Industries v. Ellerth, 524 U.S. 742, 754
(1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998).
Further, Lennon unreasonably failed to take advantage of
preventative or corrective opportunities provided by HHC to its
employees or to otherwise avoid harm. Here, Lennon was aware of
HHC's EEO policy and even attended workshops about
EEO/Affirmative Action and Americans with Disabilities Act, but
she failed to file an EEO complaint. Lennon has not challenged
the lack of knowledge of HHC. See Hawana v. City of New York,
230 F. Supp. 2d 518, 525 (2d Cir. 2002); Broad v. DKP Corp.,
1998 U.S. Dist. LEXIS 12942, *6 (S.D.N.Y. Aug. 18, 1998)
(granting defendant's motion to dismiss where plaintiff failed to
oppose defendant's motion), aff'd without published opinion,
182 F.3d 898 (2d Cir. 1999), reported in full at 1999 U.S. App.
LEXIS 13328 (2d Cir. June 16, 1999).
The SHRL Claims Are Barred By The Election Of Remedies
New York Executive Law § 297(9) provides, in relevant part:
Any person claiming to be aggrieved by an unlawful
discriminatory practice shall have a cause of action
in any court of appropriate jurisdiction for damages
. . . unless such person had filed a complaint
hereunder or with any local commission on human rights, . . .
provided that, where the division has dismissed such
complaint on the grounds of administrative
convenience, on the grounds of untimeliness, or on
the grounds that the election of remedies is
annulled, such person shall maintain all rights to
bring suit as if no complaint had been filed with the
N.Y. Exec. Law § 297(9). Put succinctly, subsection 297(9)
provides that "a person claiming to be aggrieved by an unlawful
discriminatory practice may seek relief either from a court of
appropriate jurisdiction or from the [New York State Division of
Human Rights] or any local commission on human rights, but not
both." Clements v. St. Vincent's Hosp. & Med. Ctr.,
919 F. Supp. 161, 164 (S.D.N.Y. 1996); see also Moodie v. Fed.
Reserve Bank, 58 F.3d 879, 882-83 (2d Cir. 1995) ("Generally,
the remedies of administrative review through the Human Rights
Division or judicial review are mutually exclusive.") (internal
citation omitted and emphasis in original); accord Thomas v.
New York City Health & Hosps. Corp., 2004 U.S. Dist. LEXIS
17694, No. 02 Civ. 5159 (RJH), 2004 WL 1962074, at *1 n. 1
(S.D.N.Y. Sept. 2, 2004); Benjamin v. N.Y. City Dep't of
Health, 2003 U.S. Dist. LEXIS 21973, No. 99 Civ. 12345 (LTS)
(AJP), 2003 WL 22883622, at *6 (S.D.N.Y. Dec. 8, 2003); Bullock
v. Presbyterian Hosp., 1996 U.S. Dist. LEXIS 8240, No. 95 Civ.
3928 (JSM), 1996 WL 328740, at *2 (S.D.N.Y. June 13, 1996). This
express limitation on the election of remedies applies equally to
NYHRL claims brought in state court and to those brought as
pendant claims in federal court. See, e.g., Thomas,
2004 U.S. Dist. LEXIS 17694, 2004 WL 1962074, at *1 n. 1 (citing
Collins v. Mfrs. Hanover Trust Co., 542 F. Supp. 663, 672-73 (S.D.N.Y.
1982)); Hunnewell v. Mfrs. Hanover Trust Co., 628 F. Supp. 759,
761 (S.D.N.Y. 1986).
According to Lennon, even if the election of remedies doctrine
is applicable to her Section 296 claim, "that rule is
inapplicable to this primarily federal discrimination case." In
support of this assertion, Lennon cited to EEOC v. Rotary
Corp., Long v. ATT Information Systems, and Universal Packing
Corp. v. New York State Division of Human Rights. In EEOC v.
Rotary Corp., 164 F. Supp. 2d 306 (2001), the plaintiff filed a
complaint with the EEOC and never filed a charge of
discrimination with the SDHR. Id. at 309. In Long v. ATT
Information Systems, 733 F. Supp. 188 (1990), although plaintiff
did not initially file a complaint with the SDHR, the Court
refused to exercise jurisdiction over plaintiff's state law
claims because of plaintiff's overt act in bringing the case
before the SDHR a second time. Id. at 199-200. Consequently,
the Court declined to exercise jurisdiction over these claims.
Id. at 200. In Universal Packing Corp. v. New York State
Division of Human Rights, 270 A.D.2d 586 (3d Dep't 2000), the
complaint was dismissed because of administrative convenience.
Id. at 586-87.
Here, Lennon's SHRL claims are barred by the election of
remedies doctrine because she filed an administrative complaint
on June 18, 2002, with the SDHR against HHC, alleging unlawful employment action on the basis of age, disability, national
origin, race, color, and sex, and the SDHR issued a no probable
cause determination after an investigation.
Section 297(9) divests this Court of such jurisdiction, a point
which Lennon's opposition chose to ignore. Consequently, the
Section 296 claims are dismissed.
There Is A Triable Inference Of Discrimination By KCHC
Last, we turn to Lennon's claims of discrimination by KCHC.
Title VII makes it unlawful "for an employer . . . to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, [or] national origin. . . ."
42 U.S.C. § 2000e-2(a) (1). The "ultimate issue" in any
employment discrimination case is "whether the plaintiff has met
her burden of proving that the adverse employment decision was
motivated at least in part by an `impermissible reason.'"
Stratton v. Department for the Aging, 132 F.3d 869, 878 (2d
Two methods exist by which a plaintiff can attempt to prove
intentional discrimination. First, the plaintiff may present direct evidence of employment discrimination based on an
illegitimate criterion. When an employee produces direct evidence
that an illegitimate criterion such as race "played a motivating
part in [the] employment decision," Price Waterhouse v.
Hopkins, 490 U.S. 228, 258, 109 S. Ct. 1775, 1795,
104 L. Ed. 2d 268 (1989), the burden-shifting standards of Price Waterhouse
apply. As such, "the defendant may avoid a finding of liability
only by proving by a preponderance of the evidence that it would
have made the same decision even if it had not taken the
[illegitimate criterion] into account." Id. at 258,
109 S. Ct. at 1795.
Lennon has presented no direct evidence of defendants'
intentional discriminatory statements or actions. Therefore, it
is necessary to turn to the second means of proving
When plaintiffs rely on indirect or circumstantial evidence of
discrimination, their claims are analyzed under the three-part
test announced in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). First, the
plaintiff must establish her prima facie case by showing
that: (1) she was a member of a protected group; (2) she was
satisfactorily performing the duties required of the position;
(3) she was discharged; and (4) the discharge occurred under
circumstances giving rise to an inference of discrimination.
See, e.g., McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d
Cir. 1997). Second, if the plaintiff successfully establishes a
prima facie case of discrimination, the defendant may rebut that showing by articulating a
legitimate, non-discriminatory reason for the employment action.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254,
101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); Dister v. Continental
Group, Inc., 859 F.2d 1108, 1115 (2d Cir. 1988) (the defendant
"is required to articulate but not prove a legitimate,
non-discriminatory reason for the discharge"). Finally, if the
defendant articulates a non-discriminatory reason, the plaintiff
must come forward with evidence that the defendant's articulated
non-discriminatory reason is a mere pretext for actual
discrimination. Weinstock v. Columbia Univ., 224 F.3d 33, 42
(2d Cir. 2000) ("The plaintiff must `produce not simply some
evidence but sufficient evidence to support a rational finding
that the legitimate non-discriminatory reasons proffered by the
[defendant] were false and that more likely than not
[discrimination] was the real reason for the'" employment action
(quotations and citations omitted; brackets in original)).
Pursuant to this framework, Lennon has established a prima
facie case of discrimination based upon national origin and
As to the first element of the prima facie case, there is
no dispute that Lennon is a member of a protected class. As to the second element, Lennon received annual evaluations,
completed by her supervisors, stating that her performance was
Lennon has also established the third prong, that she suffered
an adverse employment action. Typically, adverse employment
actions are economic injuries such as a termination, suspension,
failure to promote, or diminution in pay. See Sanders v. N.Y.
City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004). It is
Lennon's position that her termination resulted from her age and
national origin, that Griffith, a Trinidadian in his forties, was
selected to replace her by Leon, also a Trinidadian. The stepson
of Leon, also Trinidadian, was hired and according to Lennon, was
not supervised by her, and without authority took over her
responsibilities and invaded her computer. According to Lennon,
the reorganization was simply a device by which her job and her
job alone was eliminated. As such, Lennon's claim that she was
terminated based on her national origin and age satisfies the
third prong of McDonnell Douglas.
Finally, as to the fourth prong of the prima facie case,
with respect to her termination by KCHC, Lennon has established
that the termination occurred under circumstances giving rise to
an inference of discrimination. It appears to be Lennon's
position that Griffith was selected because of his age and
national origin, that she was denied that position because of
hers, and that the selection compelled the redundancy of her position and her
consequent termination. This inference is supported by the hiring
and treatment of Leon's stepson.
According to the defendants, Lennon testified that she had a
positive working relationship with Leon until she became jealous
of her alleged accomplishments, and to the extent that the
alleged conflict between herself and Leon was personal, Lennon's
own claim that Leon was motivated by discriminatory animus is
weakened. See Rodriguez v. Human Resources Administrative for
Children's Services, 1998 U.S. Dist. LEXIS 19567, *11 (S.D.N.Y.
Dec. 16, 1998) (where plaintiff characterizes dispute with
supervisor as a personality conflict, plaintiff's statement
"supports the defendant's position that there is no evidence of
The defendants also note that although Lennon has contended
that Griffith treated her harshly, she has not identified any
record evidence suggesting that his alleged treatment was based
on discriminatory animus or identified a single statement that
was made to her that evidenced any form of discrimination against
her. See Dean v. Westchester County District Attorney's
Office, 119 F. Supp. 2d 424, 430 (S.D.N.Y. 2000) (granting
defendant's motion to dismiss because plaintiff's conclusory
allegations that persons outside her protected class were treated
better than her insufficient to support hostile work environment
claim). Defendant states that Lennon was terminated because of a
reorganization of the department. This is a legitimate
non-discriminatory reason. As noted above, however, plaintiff
counters that the reorganization of the department was
pretextual. In support of this contention, Lennon points out
that, after he was hired and well before the reorganization
began, Griffith took all of Lennon's staff and responsibilities.
Given the evidence before it, this Court cannot conclude that
no rational trier of fact could find in plaintiff's favor on her
claims of national origin and age discrimination by KCHC.
Granting the inference in favor of the opponent of the summary
judgment motion Security Ins. Co. of Hartford, 391 F.3d at 83
(2d Cir. 2004) (quoting Gummo v. Village of Depew, 75 F.3d 98,
107 (2d Cir. 1996)), it is inferred that a triable issue has been
created on the allegation that KCHC discriminated against Lennon
and that a reasonable jury could find that she was terminated
because of her age and national origin.
It is so ordered.
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