The opinion of the court was delivered by: Garaufis, United States District Judge
Evelyn Benson ("Benson" or "Plaintiff") alleges that her former employer, the New York City Board of Education (the "Board" or "Defendant"), violated federal and state law by retaliating against her in response to a lawsuit she filed against the Board in 1999.*fn1 The Board has moved for summary judgment pursuant to Fed. R. Civ. P. 56, arguing that Benson's claims are partially barred by the doctrine of res judicata, are partially or entirely time-barred, and do not satisfy the "adverse action" and causation elements of unlawful retaliation. For the reasons set forth below, this court grants the Board's motion, dismisses Benson's federal claims with prejudice, and dismisses her state claims without prejudice to her refiling them in state court.
Before setting forth the relevant facts, I note that when deciding a motion for summary judgment, this court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). Even in a fact-intensive employment discrimination case, however, the court will not accept as fact mere allegations lacking evidentiary support. Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir. 2001).
Benson began working for the Board in 1971. Benson I, slip. op. at 1 (September 30, 2003) (cited hereinafter as "S.J. Order, Benson I at __"). In 1993, after a series of promotions, she was assigned to work for District 75 as an Automate the Schools ("ATS") coordinator with the title Provisional Computer Associate. (Id.) In 1997, the Board denied her request for a raise. (Id. at 1-2.) Later that year, Benson complained to the Board about the denied raise and about remarks allegedly made by her then-supervisor, who Benson claimed disparaged her on the basis of her race (African-American) and religion (Jehovah's Witness). (Id. at 2.)
On June 23, 1998, after filing two administrative grievances with the Board, Benson filed a charge with the United States Equal Employment Opportunity Commission ("EEOC") alleging that the Board discriminated against her on the basis of her race and religion by failing to give her a pay raise and creating a hostile work environment. (Id.at 2-3.) On October 18, 1999, Plaintiff filed a complaint in federal court alleging the same. (Compl., Benson I.) Per the order of Magistrate Judge Levy, Benson was permitted to assert a claim of continuing retaliation in Benson I based on conduct that occurred on or prior to August 30, 2000 (the "Cutoff Date"). (Cmplt. ¶ 11; Benson Aff. ¶ 4.) This court dismissed Benson I under Fed. Rule Civ. P. 56 on September 30, 2003 (S.J. Order, Benson I.) and the Second Circuit affirmed, Benson v. New York City Bd. of Educ., 161 Fed. Appx. 83, 2005 WL 3556190 (2d Cir. 2005).
On February 12, 2002, while Benson I was pending, Benson filed a second charge with the EEOC alleging, inter alia, that the Board retaliated against her for filing the 1998 EEOC charge and Benson I. (Richardson Decl. Ex. D at 1-3.) On August 28, 2002, again while Benson I was pending, Benson filed the present case, in which she alleges retaliation based on "racial profiling," two job transfers, the denial of her health benefits, the Board's failure to promote her, and her constructive termination.
At her deposition, Benson testified that the Board retaliated against her when it alleged that she hit her former supervisor Lawrence Gardener ("Gardener"). (Richardson Decl. Ex. G at 34-35, 42-43.) Benson considers this allegation to be an instance of "racial profiling" because she believes she was deemed violent based on her race rather than her individual personality. (Id. at 32-33, 34-36.)
B. Denial of Health Benefits
The Board suspended Benson for the month of August 2000. (Id. ¶ 7.) When Benson returned from that suspension, the Board failed to reinstate her health benefits for nearly one year. (Id. ¶ 8.)
On or about October 2, 2000, the Board, acting via Susan Erber ("Erber"), the Superintendent of District 75, transferred Benson to the Office of Hard of Hearing and Visually Impaired ("HHVI") under the supervision of Ina Hymes ("Hymes"). (Pl.'s 56.1 St. ¶ 9.) While at HHVI, Benson was assigned a clerical position, was given a small desk without a phone or computer, was initially not given any specific assignment, was then given "menial clerical duties" not befitting her title and performed under the supervision of someone whom Benson would normally supervise, and was required by Hymes to sign in and out for lunch. (Id. ¶¶ 10-11, 14-16; Pl.'s 10/16/00 Ltr. to Ina Hymes (Campos-Marquetti Decl. Ex. D).)
On July 31, 2001, Erber again transferred Benson, this time to the Office of Speech Services ("OSS") under the supervision of Helen Kaufman ("Kaufman"). (Pl.'s 56.1 St. ¶ 18.) While at OSS, Benson was assigned a "half desk," was given the task of packaging, and was the only employee required to sign a log sheet in Kaufman's office at the beginning and end of each day. (Id. ¶¶ 19-21.)
E. Non-Promotion to Educational Analyst
Benson was not promoted to the position of Educational Analyst despite scoring a 100 on the exam for that position. (Id. ¶¶ 23, 30.) Benson was interviewed for that position by Thomas Seluga ("Seluga"), who during the interview questioned Benson about her alleged assault of her former supervisor Lawrence Gardener ("Gardener"). (Id. ¶¶ 27-28.)
F. Constructive Termination
Benson alleges that she "was constructively terminated and became disabled from her employment at [the Board] because of the emotional distress she was suffering from the retaliatory conduct of [the ...