The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff, who works for a New York City agency, alleges that she suffered unlawful workplace retaliation for reporting purported fraud by her supervisors to city investigators and for filing a complaint of racial discrimination. She claims unjustly to have endured numerous adverse actions, including placement on involuntary psychiatric leave, and seeks damages pursuant to 42 U.S.C. § 1983 for violation of her First Amendment rights and pursuant to the New York State and City Human Rights Laws, see N.Y. Exec. Law §§ 290 et seq. and N.Y.C. Admin. Code §§ 8-101 et seq., for infringment of her right to be free from discrimination.
Defendants move for summary judgment, arguing among other grounds that the events complained of were either too minor or too attenuated to constitute retaliation for plaintiff's reporting of problems, and that any adverse action was motivated by legitimate, nonretaliatory concerns. For the reasons discussed below, the motion as to plaintiff's First Amendment claim will be denied as against defendant Rosemary Kennedy, but will be granted as to all other defendants; and it will be granted as to plaintiff's claims under city and state laws.
Plaintiff Cheryl Rosenblatt was during the relevant time, and still is, employed as a caseworker by New York City's Administration for Children's Services ("ACS"). Her responsibility as a caseworker is to determine the eligibility of applicants for publicly funded day care services based on certain rules and procedures. Unless otherwise noted, these and the following factual descriptions are based on uncontroverted evidence.
Although the record is far from clear about every party's role in the alleged events or in the workplace, it seems that each of the individual defendants held some position of authority relative to the plaintiff and experienced a history of friction with her. Doris Bell apparently supervised plaintiff in some capacity from 1997 through Bell's retirement in approximately October 2002. (See D. Rule 56.1. Stmt. ¶¶ 13, 69.) Defendant Adlyn Greenaway-Morson became plaintiff's direct supervisor in April 2003. From 1997 to approximately October 2002, defendant Kennedy was the director of the ACS center where plaintiff worked. In about October 2002, defendant Dorothy Vereen took over as director for Kennedy, after Kennedy was promoted. Defendant Rosie Henry, who became deputy director apparently of the same ACS center sometime in 2002, "controlled" the "data entry unit" of plaintiff's workplace and was in charge of distributing paychecks. (Rosenblatt Dep. at 185, 188-89.)
Plaintiff began complaining to Kennedy in the summer of 1999 about being pressured by Bell to approve ineligible day-care applicants. On August 28, 2001, plaintiff attended a meeting with Bell and Kennedy, where she accused Bell of improperly approving ineligible cases and said she would report Bell to the Inspector General ("IG") of the city's Public Assistance and Grants Unit. Kennedy later questioned Bell about the accusations plaintiff had made at the meeting. Also around that time, plaintiff announced that she would report Kennedy to the IG as well.
By a letter dated September 21, 2001, plaintiff actually reported Bell's and Kennedy's alleged misdeeds to the IG. She wrote that she had information about Bell's "pressur[ing] caseworkers, including me, to approve eligibility for parents to receive day care service[s] with documents that contradict" official procedures and policies, and that she had "knowledge of fraudulent documents that Doris Bell forced caseworkers to approve." (D. Ex. I.) She added that she had notified Kennedy of Bell's alleged misconduct, but that "I do not believe any corrective action was initiated." (Id.) She met with IG investigators soon after.
Plaintiff's attorney at the time sent Bell and Kennedy a letter dated September 24, 2001, advising them of plaintiff's report to the IG and expressing her client's "concern about any reprisals that may ensue." (P. Ex. H.) Near the time of her IG report, plaintiff told Kennedy that Bell was harassing her for speaking up about Bell's alleged misconduct; the only detail alleged is that Bell "falsely accus[ed plaintiff] of hitting [Bell] in the eye with" a document (D. Rule 56.1. Stmt. ¶ 64). In late September 2001, Kennedy wrote several internal memoranda noting that the plaintiff appeared "more fragile and . . . anxious" following the recent death of her father, "continues to have outburst [sic] and challenges directives," refused to sign a certain form as was required, and "stated that she is willing to lose her inheritance if it ensured her that Doris Bell would lose her job." (P. Ex. I.)
From October 2001 until October 2002, plaintiff has testified, there was no harassment, and "everything was fine." (Rosenblatt Dep. at 184.) In October 2002, "[t]he atmosphere started to change," plaintiff states. (Id. at 185.) Her only detailed allegations from around that time are that: "[c]ases were returned to me [from the data entry unit, which defendant Henry evidently controlled] with error sheets stating that there were errors, but there were no errors" (id. at 185); a broken file cabinet lock she had reported to Vereen, who said she would tell Henry to have it repaired, was never fixed; and "my phone didn't work and . . . . the telephone repairman informed me that somebody put glue in the telephone receiver deliberately" (id. at 192).
On April 10, 2003, plaintiff lodged an in-person complaint with ACS's internal equal employment opportunity ("EEO") office that she was "being harassed on the basis of race." (D. Ex. K.) The EEO office's contemporaneous record of that complaint notes that plaintiff mentioned each of the individual defendants. Plaintiff has testified to having filed the EEO complaint "a day or two" after defendant Greenaway-Morson had become her direct supervisor, "hoping that it would be a deterrent" against this defendant's "harassing me." (Rosenblatt Dep. at 200.) The purported harassment plaintiff was hoping to deter consisted, at that point, of Greenaway-Morson's criticism of how plaintiff had adopted to working with a new record-keeping form. (See id. at 195-96.)
The day she filed her EEO complaint, plaintiff wrote Greenaway-Morson a note informing her that she had done so. (See P. Ex. M). Greenaway-Morson thereafter retaliated by doing "many things," plaintiff claims. (Rosenblatt Dep. at 197.) The supervisor included critical comments on her May 10, 2004, evaluation of plaintiff's work, while nevertheless giving Rosenblatt an "overall rating" of "good": "Employee interviews are lengthy and employee casework skills . . . need to be strengthened. Employee ha[s] to be flexible and . . . to establish a rapport with the daycare programs to attain additional data needed . . . and to initiate continued services where applicable . . . . In addition employee must be focus[ed] throughout the interview process [on] eligibility issues[,] . . . not [on] other issues that are not part of the interview process." (P. Ex. T.) Greenaway-Morson noted similar comments on an April 28, 2005, evaluation, which also rated plaintiff as "good." (P. Ex. T.) Plaintiff had received better ratings in at least two prior evaluations. She submits a 1998 evaluation finding her to conduct applicant interviews "exceedingly well" and to possess a "keen sense of and excellent knowledge of her job responsibilities," and rating her overall as "very good." (P. Ex. R.) She was similarly assessed as "very good," and deemed "very efficient" and "very knowledgeable," in a 2003 evaluation presumably completed by someone other than Greenaway-Morson. (P. Ex. S.)
The only other retaliatory action plaintiff alleges against Greenaway-Morson is that she "refused to sign unplanned leave slips or sick leave slips," contrary to past procedure, leaving plaintiff with "no idea if I was going to be marked AWOL if I called in sick or if I wanted to take a day off because I didn't have any written proof of it." (Rosenblatt Dep. at 197.)
Three weeks after filing her initial complaint, plaintiff called the EEO office again to report that "she continues being subjected to unfair treatment because of her race and religion."
(P. Ex. L.) Plaintiff complained only that "her issue had to do with her supervisor refusing to sign a personnel [leave] form." (Id.) In follow-up conversations with plaintiff's supervisors, the EEO office learned that plaintiff was apparently mistaken about the leave procedure and that defendant Vereen had told her as much, and it told plaintiff to comply with her supervisor's directives. Plaintiff was permitted to leave work and visit the EEO office later that day. The EEO investigator's April 30, 2003, report notes that plaintiff said she had been told about the changed leave procedure, that she had been given documentation about the change but had not read it, and that she had not lost any money as a result of her purported leave-slip problems with Greenaway-Morson. Plaintiff told the EEO office that day that she wished to withdraw her discrimination complaint, although she refused to sign a withdrawal form.
Also at some point soon after she complained to the EEO office, plaintiff claims, defendant Henry began to "[make] it extremely difficult for me to get a paycheck," by "just very, very, very slowly giving me [my] paycheck . . . . Sometimes . . . I would have to make two trips, but the whole process could take an average of four minutes . . . . One of the times . . . it took twenty-five minutes." (Rosenblatt Dep. at 189-90.) Plaintiff deduced that she was being treated differently ...