The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Pro se plaintiff Velma Harris, a psychiatric social health technician formerly employed by defendant, the New York City Health and Hospital Corporation ("HHC"), brings this action against HHC, the City of New York, and Evelyn Bersamin pursuant to Title VII, 42 U.S.C §2000e et seq. ("Title VII") alleging that she was discriminated against based on her race/ethnicity. Plaintiff is an African-American woman who alleges she was denied a work tour change in 1998 while allegedly similarly situated non African-Americans were granted work tour change requests. Presently before the court, is a motion for summary judgment by defendants HHC, the City of New York, and Evelyn Bersamin (collectively the "Defendants"). For the reasons set forth below, Defendants' motion is granted.
Plaintiff was employed by HHC at Queens Hospital Center from February 10, 1992 through May 24, 1998. In early 1992, defendant Evelyn Bersamin, an associate director at the Queens Center Hospital, interviewed plaintiff for the position of Licensed Practical Nurse at Queens Center Hospital, and plaintiff was hired in the Psychiatric Department on January 31, 1992.*fn1 (Def. 56.1 Statement¶1; Walters Decl. Ex. B.)*fn2 The day plaintiff was hired, she signed a memo acknowledging that the Psychiatric Department was a "closed area which means staff has to cover each other." (Ex. C.) Although plaintiff requested a Tour I shift when she applied, she was assigned to Tour II on her first day.*fn3 (Ex. A 35:18 -- 22.)
In her complaint, plaintiff alleges discrimination based upon Defendants' repeated denials of her requests for tour changes. As early as 1994, plaintiff renewed her request to defendant Bersamin for a change in shift from Tour III to Tour I. (Ex. A 51:4 -- 5.)*fn4 These requests for a transfer to Tour I were communicated orally until February 5, 1998 when plaintiff sent a written request to defendant Bersamin. In this letter, plaintiff asked for a change to Tour I because of difficulties concerning childcare. (Ex. L; Ex. A 51:4 -- 5, 17 -- 20.) Defendants argue that plaintiff's requests were denied due to a staff shortage on Tour III and not for discriminatory reasons.
Plaintiff also alleges several instances of discrimination based upon comments by defendant Bersamin. At various points in her employment, defendant Bersamin "teased her" because she was a "hard worker," a term that plaintiff believes is a "play on the fact that [she is] African-American." (Ex. A 64:5 -- 6.) In addition, plaintiff alleges that defendant Bersamin, referring to African-Americans, stated that as "Jesse Jackson's people [ ] they do whatever he says" while plaintiff was close enough to hear her. (Compl. ¶ 8.) Because of this alleged animus against African-Americans, plaintiff contends that defendant Bersamin refused to transfer her while honoring the requests of similarly situated non-African American employees. (Compl. ¶ 7.) On Sept. 15, 1998, plaintiff filed a complaint with the City of New York Commission on Human Rights ("CHR") alleging she was discriminated against based on her race.*fn5 (Ex. M.) On Sept. 17, 2002, the CHR, after an investigation by the City of New York's Law Enforcement Bureau, determined that the transfer plaintiff had requested was not "operationally feasible" at the time of the request. The CHR determined that this was a valid reason to deny plaintiff's request. (Ex N.) When plaintiff did not respond to the HRC's letter, that it would reconsider if provided with evidence of discrimination, the complaint with the HRC was administratively closed on October 18, 2002.
Plaintiff received her right to sue letter from the EEOC on January 3, 2003. (Ex. P.) On March 28, 2003 the plaintiff, acting pro se, filed a Title VII complaint alleging employment discrimination against Defendants.
Summary judgment is appropriate "where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The court must view all facts in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-248 (emphasis in original).
Although Defendant's summary judgment motion is unopposed and the facts stated in the Defendants' Local Rule 56.1 statements are deemed admitted for the purpose of this motion, the moving party must still meet its burden of demonstrating that no material issue of fact exists. Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 1998) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)). Additionally, each of the facts in Defendants' 56.1 statement must also be followed by citation to evidence which would be admissible, under Fed. R. Civ. P. 56(e). See also, E.D.N.Y. Local Civ. R. 56.1 (d). "Thus, it is clear that even when a non-moving party chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 1998). "Moreover, in determining whether the moving party has met this burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statements of undisputed facts contained in the moving party's Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion." Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). If the evidence in support of the summary judgment motion does not meet this burden, summary judgment must be denied "even if no opposing evidentiary matter is presented." Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 1998) (emphasis in original).
I. Claim Against the City of New York
Plaintiff asserts a claim against defendant the City of New York, independent of her claim against HHC. As HHC is a public benefit corporation, it is a separate and distinct entity from the City of New York. Clarke v. City of New York No. 98 CV 3715, 2001 WL 876926 at *10 (E.D.N.Y. Aug. 1, 2001) (citing Brennan v. City of New York, 451 N.E.2d 478, 479 (N.Y. 1983) (holding HHC, as an independent public benefit corporation, is not an agency of the City of New York). Plaintiff does not dispute that she is employed by HHC. Plaintiff's complaint asserts allegations against HHC (and its employee) and not the City of New York. Plaintiff does not provide any evidence of that the City of New York influences personnel decisions of HHC or has any control over their policies. Therefore, plaintiff cannot properly assert a Title VII claim against the City of New York because the City of New York is not a proper party to this action. The motion for summary judgment for failure to state a claim against the City of New York is granted.
II. Claim Against Individual Defendant Bersamin
Plaintiff asserts a Title VII claim against individual defendant Evelyn Bersamin. Individuals are not subject to liability under Title VII. Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (holding that individuals with supervisory control may not be held personally liable under Title VII). Therefore, the motion for ...