The opinion of the court was delivered by: George B. Daniels, District Judge
MEMORANDUM OPINION & ORDER
Plaintiff, a Haitian female, brought this suit against defendants alleging discrimination, hostile work environment, and retaliation in violation of Title VII, 42 U.S.C. § 2000e, et seq, as well as violations of 42 U.S.C. § 1981, New York state law, and City Human Rights Law. Defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). Defendants' motion for summary judgment is granted.
Plaintiff, Monique Garcia, is a female Haitian immigrant and has been an employee of the New York City Administration for Children's Services ("ACS") since 1980 (previously called the Bureau of Child Welfare). She serves at ACS under the title of Supervisor Level I Welfare and is currently on leave for a worker's compensation injury. In 1986, while employed as a caseworker in the Queens Field Office, plaintiff filed a complaint of sexual harassment against two male co-workers, at least one of whom was an African-American male. Plaintiff alleged that the men made sexual remarks and gestures towards her. The matter was investigated by ACS and deemed unsubstantiated. In October of 1986 plaintiff wrote to the Commissioner of Social Services and to Senator Alfonse D'Amato accusing two female supervisors of harassing her. Plaintiff claimed that the supervisors used racial and ethnic slurs in speaking to her. ACS investigated these charges as well and found that they were unsubstantiated.
Plaintiff began working in the Manhattan Field Office in 1987. In 1989, upon passing her civil service exam, plaintiff was promoted to the rank of Supervisor Level I and remains in that position. Plaintiff continued to work in the Manhattan Field Office until August 1999, when she was redeployed to the customer service department of the ACS Office of Child Support Enforcement ("OCSE"). Plaintiff alleges in her complaint that beginning soon after her transfer to OCSE in 1999, two African-American female co-workers, harassed plaintiff and used derogatory language in retaliation for plaintiff's 1986 complaint against the two male co-workers. The statements plaintiff accuses them of making in 1999 include calling plaintiff a "bitch" and "Haitian bitch" on multiple occasions, as well as announcing that plaintiff "filed against a black man, she has something against black man." (Akin Decl. Memorandum in Opposition, ¶ 10-11.)
On November 24, 1999, plaintiff wrote her superiors an internal complaint alleging harassment and hostile work environment during two training sessions. In a later six-page undated memorandum entitled "Retaliation from New Work Assignment O.C.S.E.," that refers to events as late as September 13, 2000, plaintiff accused various co-workers of harassment. In September 2000, plaintiff contacted ACS's Office of Equal Employment Opportunity ("OEEO") to make a complaint of harassment and conspiracy. In response, OEEO launched an investigation into plaintiff's allegations with the OEEO Director personally interviewing all the employees named in the complaint. OEEO found that plaintiff's allegations were unsubstantiated.
In 2001, plaintiff was assigned to be under the direction of one of the two African-American females whom she now alleges harassed her in 1999. Plaintiff alleges that from at least December 20, 2001 through at least January 16, 2002, that supervisor made such remarks as "[t]hese Haitians and immigrants think they can come over here and take over our jobs," and "foreign bitch." (Akin Decl. ¶ 16.) Plaintiff also alleges that she started receiving negative evaluations in her periodic reviews in 2001 because defendants were attempting to "justify their wrongdoing." (Plaintiff's Memorandum in Opposition, ¶ 37.)
On April 4, 2002, an incident occurred in Customer Service that involved plaintiff and her supervisor. Plaintiff was working with a customer and sought the assistance of her supervisor who was meeting with the OEEO director about a case. Plaintiff interrupted the meeting and became agitated, cursing and leveling insults at her supervisor. Plaintiff alleges that her outburst was provoked because the supervisor spoke to plaintiff in a harsh tone. The disturbance was reported for disciplinary action. Charges were filed on September 24, 2002, and the Informal Conference found the charges against plaintiff to be substantiated. A twenty-five day suspension as punishment was recommended. Plaintiff was suspended for twenty-three days without pay and alleges that the suspension was retaliation for plaintiff "challenging the discriminatory practices . . . ."
On July 15, 2002, plaintiff's supervisor deployed plaintiff to the Customer Service Telephone Inquiry Unit and assigned her a seat next to another African-American female. This person was one of several employees complained about in plaintiff's undated memoranda entitled "Retaliation from New Work Assignment O.C.S.E." Plaintiff alleges this move was also in retaliation for plaintiff's "criticism of the discriminatory practices." At some point soon thereafter, plaintiff alleges that the previously complained about employee told a male employee, "[t]his is Ms. Garcia and she thinks that she is superior. That's a big one for you, now you can stay on her case." (Akin Decl. ¶ 22.) Plaintiff contends that this statement encouraged the male employee to stalk plaintiff when she would leave her desk and on one occasion to "hold his crotch and mak[e] strange noises" while staring at her. (Akin Decl. ¶ 22.) Plaintiff alleges that she informed the other female employee, in her capacity as the male employee's supervisor, of his behavior but her complaint was ignored.
On November 18, 2002, plaintiff filed a charge of hostile work environment, retaliation and discrimination based on sex, race, national origin and age with the Equal Employment Opportunity Commission ("EEOC"). In particular, plaintiff targeted her supervisor, and both of the other female and male employees, accusing them of creating an atmosphere that encourages clients and co-workers to treat plaintiff with disrespect in retaliation for plaintiff's earlier complaints.
Plaintiff brought this lawsuit against ACS and the City of New York on the same grounds as alleged in her EEOC charge. She claims that the employees acted in concert against plaintiff because of a belief that immigrants in ACS are there to take jobs that belong to African-Americans. Moreover, plaintiff claims that there was a conspiracy among the three and possibly others to create a hostile work environment with the purpose of driving immigrant workers out of the agency.
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when "there is no genuine issue as to any material fact . . . ." Fed. R. Civ. P. 56(c). The burden is on the moving party to demonstrate that no genuine factual dispute exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After such a showing, the non-moving party must respond with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence" to show that there is a genuine issue for the trier of fact to resolve. D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998). A court will resolve all factual disputes in favor of the non-moving party. See Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, Inc., 182 F.3d 157, 160 (2d Cir.1999). If there is evidence from which a reasonable inference could be drawn in favor of the non-movant, then summary judgment is not appropriate. See Tri-State Employment Serv., 295 F.3d at 260.
TIMELINESS OF PLAINTIFF'S TITLE VII CLAIMS
Allegations of discrimination under Title VII must be raised in a charge filed with the EEOC within three hundred days of the allegedly discriminatory act. 42 U.S.C. § 2000e-5(e)(1). See, e.g., Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74 (2d Cir. 2003). Plaintiff filed her charge with the EEOC on November 8, 2002. Thus, plaintiff's Title VII claims based solely on conduct that occurred prior to January 12, 2002 are untimely. Defendants argue, therefore, that all of plaintiff's claims involving events that occurred prior to January 12, 2002, concern actions that are time-barred and must be dismissed. Plaintiff responds by asserting that defendants' conduct ...