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McWhite v. New York City Housing Authority

April 10, 2008

SARA LEE MCWHITE, PLAINTIFF,
v.
NEW YORK CITY HOUSING AUTHORITY, DEFENDANT.



The opinion of the court was delivered by: Gershon, District Judge

OPINION & ORDER

Plaintiff Sara Lee McWhite brings this action against defendant New York City Housing Authority ("NYCHA") alleging that defendant: (1) discriminated against her on the basis of her race and age; (2) retaliated against her on the basis of her opposition to discriminatory practices; and (3) subjected her to a hostile work environment, all in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000 et seq. ("Title VII"); the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.; 42 U.S.C. §§ 1981 and 1983; New York State Executive Law §§ 290 et seq. ("NYSHRL"); and New York City Human Rights Law, NYC Administrative Code §§ 8-101 et seq. ("NYCHRL").*fn1

Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff subsequently moved for injunctive relief pursuant to Rule 65 of the Federal Rules of Procedure and under Title VII and the ADEA, seeking relief from unlawful retaliation and harassment. For the reasons discussed below, defendant's motion for summary judgment is granted in its entirety, and plaintiff's motion for injunctive relief is denied.

BACKGROUND

I. Statement of Facts

The following facts are undisputed unless otherwise noted: Plaintiff is an African-American woman who was born on November 1, 1949. She began her employment with defendant in 1984 as a part-time Tenant Patrol supervisor. During her tenure, plaintiff has been promoted several times, has been given above-average evaluations, and has received much recognition for her efforts in developing NYCHA's alternative high schools. Currently, she is a Community Coordinator in the Brooklyn Office of the Department of Community Operations ("Brooklyn Office"), a position she has occupied since 1998.

Beginning in 2001, when Maggie Moats, an African-American woman born on December 2, 1960, became the Deputy Director of the Brooklyn Office, a series of incidents occurred between her and plaintiff that culminated in this lawsuit. In total, plaintiff cites thirteen incidents that occurred from 2001 to 2005 in connection with her discrimination, retaliation, and hostile work environment claims.

On November 30, 2001, Ms. Moats issued plaintiff a Counseling Memorandum for acting insubordinately in failing to report to work on November 29, 2001, and failing to contact Ms. Moats about her absence. Ms. Moats maintained that plaintiff did not report to work because of a disagreement she had with plaintiff. Plaintiff refused to sign the memorandum, and, on December 4, 2001, she issued a rebuttal and grievance with her union, in which she claimed that she did not report to work because she awoke that morning with a stiff neck and lower back pain. After defendant held a hearing, Ms. Moats issued a revised memorandum on January 9, 2002, which omitted the language about plaintiff failing to contact her, but still discussed plaintiff's insubordination. Plaintiff again refused to sign and filed another grievance with the union. The grievance was subsequently dismissed, and the revised memorandum remained in plaintiff's file.

On December 4, 2001, plaintiff was reassigned by then Director of the Brooklyn Office, Mary Starks, an African-American woman, to defendant's Drug Elimination Program. According to defendant, plaintiff was reassigned because of complaints Ms. Starks received from resident leaders regarding plaintiff's approach to the election process. Plaintiff claims such complaints are unsubstantiated. See McWhite Dep. Tr. at 105-06. However, plaintiff admits that the new position was commensurate with her skills and experience. She received the same pay, maintained the same hours and worked at the same locations. Her overtime, however, was reduced.

Plaintiff also claims that Ms. Moats put her on pay suspension and unfairly marked her absent without approved leave ("AWOL") on November 29, 2001 and July 1, 2002, effectively "blacklisting" her for future employment opportunities. McWhite Dep. Tr. at 142. On both days, plaintiff was out sick because of injuries she sustained in car accidents and therefore should not have been marked AWOL. Plaintiff's employment records show that, in both instances, Ms. Moats rescinded her actions and restored plaintiff's pay the day after it had bene docked.

In addition, plaintiff claims that Ms. Moats harassed her on July 1, 2002 by forcing her to go to the central office. Plaintiff had been out from work since May 10, 2002 because of injuries she sustained in a car accident but planned to return to work on July 8, 2002. Plaintiff claims that, on July 1, Ms. Moats told her that she needed to give Ms. Moats a doctor's note by the end of the day in order to return to work on July 8. After reporting to the central office to submit the note, plaintiff was specifically told, by a different NYCHA employee, that she could not deliver the note that day, but that she would have to deliver it on July 8.

On March 14, 2003, plaintiff was reassigned by then Director of the Brooklyn Office, Carl Billington, an African-American born on July 16, 1955, to work under Lisa Davis and assist in the Program Unit. According to Mr. Billington, he reassigned plaintiff because of the dissolution of defendant's Drug Elimination Program; a March 2003 act of insubordination;*fn2 complaints by Resident Leaders; and his belief that plaintiff would be an asset to Ms. Davis and the Program Unit, which was in need of assistance. Plaintiff alleges that these reasons were not credible. In any event, the new position did not change plaintiff's salary, title, or work location, though plaintiff alleges she was no longer able to receive overtime. She also claims that the new position was not commensurate with her skills, since it was mostly clerical and did not require her to perform much work.

On April 15, 2003, plaintiff submitted an Incident Report describing an altercation she had witnessed on April 11 between Ms. Moats and Hajj Ali-Malik, the Center Director of the Roosevelt Houses. In the Incident Report, plaintiff wrote that Ms. Moats shouted derogatory comments at Mr. Ali-Malik, such as, "I'll have your job", "Who do you think you are, in that long black robe?", and "You may be a bean pie eating Muslim, but you don't scare me." Billington Decl. Ex. E. As a result of the incident, Mr. Ali-Malik filed an EEOC Charge of Discrimination on August 19, 2003. Plaintiff claimed during her deposition that she helped Mr. Ali-Malik with his EEOC Charge over the telephone at night and on the weekends, but never at the office. McWhite Dep. Tr. at 28-30.

Plaintiff also gave a deposition on February 2, 2005, in support of Mr. Ali-Malik's lawsuit against defendant. Defendant maintains it was unaware of any assistance plaintiff provided Mr. Ali-Malik.

On June 4, 2003, Mr. Billington issued an Instructional Memorandum to plaintiff instructing her regarding the next assignment as well as scolding plaintiff for her "hints of threats, insubordination and manipulation." McWhite Decl. Ex. E. The memorandum memorialized a May 16, 2003 meeting between plaintiff and Mr. Billington, in which they discussed plaintiff's new position and her use of work time to write personal letters regarding NYCHA's hiring practices, and after which plaintiff had written a memorandum to Mr. Billington in which she claimed he had admonished her for "exercising her rights." Id.

In response to Mr. Billington's Instructional Memorandum, plaintiff wrote another memorandum to Mr. Billington, claiming that his memorandum was "another attempt to harass, discredit, and intimidate this employee." Id. Plaintiff also filed a grievance, arguing that his memorandum should not have contained negative comments and should not have been forwarded to Labor Relations. Plaintiff then wrote a letter, dated June 13, 2003, to various agencies, including the EEOC, requesting assistance in "putting an[] end to the illegal hiring practices, promotion practices, [and] employee harassment." Id. The letter discussed at length the questionable demotions of employees in favor of the politically connected, and plaintiff claimed that she was reassigned and harassed because she would not "bend the rules." Id. Plaintiff's letter was forwarded to the NYCHA's Department of Equal Opportunity.

In July 2003, defendant posted an announcement for the position of Borough Administrator in the Brooklyn Office. Along with a number of other employees, plaintiff submitted her resume in application for the position. In August 2003, Erenisse Tavarez interviewed the applicants, including plaintiff, but, according to defendant, no one was selected for the position because budget cuts forced it to eliminate the position. Plaintiff, however, claims that Gina Watkins, another African-American woman, actually got the position because (1) Ms. Watkins had previously been appointed "Acting" Borough Administrator in April 2003, and (2) Ms. Tavarez had told plaintiff in April that Ms. Watkins already had the position. McWhite Dep. Tr. at 73-74. Plaintiff further claims that she was more qualified than Ms. Watkins and that she was denied the promotion based on age discrimination and retaliation, although not because of her race. Id. at 78-79. Defendant acknowledges that Ms. Watkins was appointed "Acting" Borough Administrator in April 2003 because she had already assumed some of the responsibilities of a Borough Administrator, but maintains that she was not promoted pursuant to the vacancy posting. Ms. Watkins' employment record shows that she did not receive a change in title or raise in salary in or around August 2003.

In October 2003, defendant announced an opening for the Director of the Department of Citywide Programs, a position that entailed responsibilities for, among other things, overseeing a staff of 1,300 individuals and a program budget of approximately $7 million. Plaintiff submitted her resume in application for the position. In November 2003, Ms. Pinnock interviewed potential candidates, including plaintiff. After the interviews, Ms. Pinnock determined that none of the interviewees were qualified for the position and therefore promoted none of them. With regard to plaintiff, Ms. Pinnock stated that she was not qualified because she lacked significant managerial experience, she did not have sufficient knowledge of the Department or its programs, she had previously conflicted with resident leaders, and she did not have significant experience organizing large scale events. Eventually, Ms. Pinnock appointed Mr. Ernesto Lozano, who was then the Borough Director of Staten Island Community Operations, to the position, even though he was not interviewed. Ms. Pinnock felt that Mr. Lozano, who had served as Borough Director for approximately 8 years, had the necessary managerial experience required for the job. At her deposition, plaintiff admitted that Mr. Lozano "has far more qualifications" than she, but that her problem with Mr. Lozano's promotion was "that it wasn't done procedurally." McWhite Dep. Tr. at 98-100. Plaintiff further stated that she was denied the promotion in retaliation, though not because of her race or age. Id. at 100-01.

On March 24, 2004, plaintiff received permission to use a Housing Authority van on March 25 to transport her and four other employees to defendant's central office to obtain replacement identification cards. On March 25, plaintiff reported to work and soon afterward discovered that the van had left the Brooklyn Office without her. Ms. Moats, allegedly unaware that plaintiff had received permission to use the van, directed Henry Gumps, the van driver, to use the van to take Sarah Cooper to the central office to submit or retrieve several boxes of applications and to take Leron Obie, a caretaker, to the Lafayette Houses to assess a situation with the alarm system. Plaintiff claims that Ms. Moats deliberately instructed Mr. Gumps to leave without her. Mr. Obie states that Ms. Moats told Mr. Gumps to drive him and Ms. Cooper to the central office and leave plaintiff and Crystal Warlick behind.

After learning that the van had left without her, plaintiff contacted Mr. Gumps to return to the Brooklyn Office. Although the van came back, it was no longer fit to drive because of a flat tire. Ms. Moats told Mr. Gumps, Mr. Obie, and Ms. Cooper to use her personal Housing Authority vehicle to commute to Lafayette House and then to the central office. According to Ms. Moats, her car could only fit three people because of the several boxes of applications, so she suggested that Ms. Davis, who was plaintiff's direct supervisor, arrange for plaintiff to use her vehicle to go to the central office. Plaintiff denies that she had this opportunity because she would have missed her appointment by that time.

Also in March 2004, during the time Ms. Moats was in the process of forwarding grant proposal materials to residential associations, plaintiff claims she was accused by Ms. Moats of stealing grant proposal materials. Ms. Moats claims plaintiff took bound copies of these materials that belonged to Ms. Moats. According to plaintiff, the materials had been in her possession since 1998, and she claims that Ms. Moats' statement that plaintiff had "inappropriately removed" these documents was harassing and retaliatory. McWhite Dep. Tr. at 140. Defendant, in contrast, contends that Ms. Moats made no such statement and that she only sought a return of the copies. Most of the copies were eventually returned and plaintiff did not receive any disciplinary action.

In October 2004, defendant posted an announcement for eight Borough Administrator positions throughout the Housing Authority. Michelle Pinnock and Hugh Spence interviewed the applicants. Defendant promoted Ms. Watkins, Alexander Duque, and Rolston Hopson to Borough Administrator in the Brooklyn Office. Ms. Watkins' employee record card reflects that she received a promotion in mid-February 2005. Plaintiff was not interviewed and did not receive the promotion because: (1) she did not apply for the position; (2) she had not been recommended for the position by the Borough Directors in the spring of 2004; and (3) Ms. Pinnock was not aware that plaintiff was interested in becoming a Borough Administrator. Plaintiff argues that she should have been considered for the job despite the fact she did not apply, because, in the rejection letter she received after applying for the same position in July 2003, defendant stated that it would keep her resume on file in the event that future opportunities arose that fit her qualifications.

In addition to the above incidents, plaintiff claims that there were other "little slights and sillinesses" that she considered to be attempts by defendant, and specifically Ms. Moats, to "irk [her] for no other reason." McWhite Dep. Tr. at 142. Specifically, plaintiff claims that Ms. Moats directed her to "mind my own business" and told other employees not to speak with plaintiff as a result of the assistance she gave to other NYCHA employees, specifically Gregory Summerlin, Natalie Henry, Debbie Lawrence, and Mr. Ali-Malik.*fn3 See id. at 151-65. According to Ms. Warlick, Ms. Moats told her not to speak with plaintiff after the March 2004 van incident. Ms. Moats denies she made such statements and also denies that she was aware of any assistance plaintiff provided to Ms. Henry, Ms. Lawrence, and Mr. Ali-Malik.

Finally, several other employees express problems with Ms. Moats. Ms. Warlick claims in her affidavit that Ms. Moats harassed her and other employees. Ms. Lawrence describes Ms. Moats as vengeful and uncooperative and claims that she did not follow NYCHA policies and procedures. Finally, Ms. Henry claims that Ms. Moats told her to spy on co-workers and admonished her for talking to plaintiff. She also characterizes Ms. Moats as having been "rude and abrasive" from the minute she arrived at the Brooklyn Office.

II. Procedural History

On June 14, 2004, plaintiff filed a discrimination charge with the EEOC claiming that she had been discriminated against because of her race and age, retaliated against for assisting other employees, harassed, and subjected to a hostile work environment. In the charge, plaintiff discussed that she had been denied the Borough Administrator and Director of Citywide Programs positions despite her qualifications, had been "written up for frivolous issues by Maggie Moats", and had "all of [her] essential duties . . . removed by Ms. Moats." Niederhoffer Decl. Ex. N. After receiving a "Notice of Right to Sue" from the EEOC, plaintiff filed a pro se complaint in this court on February 23, 2005.

DISCUSSION

I. Standard of Review

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. Proc. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts[;] . . . the nonmoving party must come forward with specific facts showing that there is a genuine issue ...


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