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Chin v. New York City Housing Authority

September 9, 2008

AMY CHIN, PLAINTIFF,
v.
NEW YORK CITY HOUSING AUTHORITY, DEFENDANT.



The opinion of the court was delivered by: Richard J. Holwell, U.S.D.J.

MEMORANDUM OPINION AND ORDER

Defendant New York City Housing Authority ("NYCHA") moves for summary judgment pursuant to Rule 56, Fed. R. Civ. P., on plaintiff Amy Chin's claims under 42 U.S.C. § 1981 ("Section 1981"), N.Y. Exec. Law § 296, and N.Y.C. Admin. Code § 8-101 et seq. Plaintiff claims that defendant is liable for several alleged acts of racial discrimination and retaliation committed against her by her superiors-employees of defendant-including allegedly denying promotions to her and ultimately transferring her to another division to work a "dead end" job because she is Chinese. Given the material issues of fact regarding plaintiff's performance and the acts and decisions of defendant's employees, summary judgment would ordinarily be unwarranted. However, defendant's motion is granted herein because municipal liability under Section 1981 attaches only if the acts at issue can properly be identified as the policy or custom of the municipality, and the evidence submitted cannot support this inference. Further, in the absence of a federal claim, the court declines to exercise supplemental jurisdiction over plaintiff's state law claims.

BACKGROUND

Plaintiff has worked for defendant in various capacities since December 21, 1981. (Defendant's Rule 56.1 Statement ("Def. 56.1 Statement") ¶ 1; Plaintiff's Affidavit ("Pl. Aff.") ¶ 3.) She began as an Assistant Accountant in the Design Department and was subsequently promoted in 1993 to Administrative Accountant, an "M-1"*fn1 management position in the Disbursements Division of the Financial Operations Department. (Def. 56.1 Statement ¶¶ 1-2; Pl. Aff. ¶¶ 3, 5.) Plaintiff remained in the latter position until her transfer to NYCHA's Operations Division in November 2005. (Def 56.1 Statement ¶ 41; Chin Dep. at 164-66.) The conduct that is the subject of this action began in 2002 and allegedly continues to this day.*fn2 (Pl. Br. at 1.)

Plaintiff's First Application for Promotion

In August 2003, plaintiff's immediate supervisor, Ahmed Thabet, was promoted from his M-2 position of Assistant Director of the Control Section of the Disbursements Division of the Financial Operations Department to an M-3 position as Deputy Director of the Disbursements Division. (Def 56.1 Statement ¶ 7.) Shortly after Thabet's promotion, the Director of the Financial Operations Department, Michael Pagani, retired. (Def 56.1 Statement ¶ 10; Pl. Aff. ¶ 10.) Before leaving, however, Pagani told plaintiff that he would recommend her to replace Mr. Thabet. (Pl. Aff. ¶ 9-10.)

Plaintiff subsequently asked Thabet, now Deputy Director of the Disbursements Division, for a promotion to Assistant Director of the Control Section, first orally in December 2003 and then in writing in March 2004. (Def 56.1 Statement ¶¶ 11-12; Pl. Aff. ¶ 11-12.) Plaintiff and Thabet dispute how Thabet responded to plaintiff's requests. According to plaintiff, Thabet told her that the position was open, but that he had to wait for Mr. Pagani's replacement. (Pl. Aff. ¶ 11.)Mr. Thabet claims that he never said there was an open position to which plaintiff could be promoted, and that in fact he had told her the opposite. (Thabet Aff. ¶ 12.) Plaintiff also claims that following her written request for promotion, Thabet called her into his office and responded to her questions about why a co-worker was promoted to an unrelated position by telling her that "You don't know that only the Jews and Italian have the power now. You better not complain." (Chin Dep. at 65.) Paradoxically, it appears that Thabet himself is Egyptian and neither Jewish nor (obviously) Italian. (Thabet Dep. at 11-12.) In any event, Thabet denies he made such remarks. (Thabet Supp. Aff. ¶¶ 3-4.) Lastly, Thabet and Plaintiff dispute who performed Thabet's former duties as Assistant Director following his promotion, with plaintiff claiming she did and Thabet claiming he did. (Thabet Aff. ¶ 8, 12; Pl. Aff. ¶ 22.)

In April 2004, the interim Director of the Financial Operations Department, Kirit Pamchamia, assigned Bernard Pigott to Thabet's former position of Assistant Director. (Def 56.1 Statement ¶ 20.) Pamchamia did not give Pigott a salary increase for this assignment because Mr. Pigott had previously been an Assistant Director in another division of the NYCHA, and the assignment constituted a simple transfer. (Id. at ¶¶ 18, 20.) Based on her personal experience with him, plaintiff concluded that Pigott was grossly underqualified for the position. (Chin Dep. at 279-80.)

In October 2004, plaintiff complained to Thabet about the appointment of Pigott. (Def 56.1 Statement ¶ 25.) Thabet and plaintiff again dispute the substance her complaint. Thabet claims that plaintiff said Pigott was an "outsider" and that she was more deserving of promotion, while plaintiff claims that she explicitly told Thabet that she thought Pigott's assignment was racially motivated. (Thabet Aff. ¶ 20; Pl. Aff. ¶ 24.)

Defendant's Early Attempts to Reassign Plaintiff

In July 2004, Jeffrey Pagelson was appointed NYCHA's Controller and took over Mr. Pagani's responsibilities. (Def 56.1 Statement ¶ 24.) On October 14, 2004, Mr. Thabet, after consulting with Pagelson, directed plaintiff to take a new position in the Petty Cash and Employee Unit of the Purchase Order Section of the Disbursements Division. (Def 56.1 Statement ¶ 26; Chin Dep. 72-76.) The parties dispute the nature of the position in Petty Cash, with defendant describing it as "managerial" and involving "important responsibility", and plaintiff describing it as non-managerial and consisting mainly of clerical work. (Def 56.1 Statement ¶ 26; Chin Dep. 72-76.) When she received the directive from Thabet, plaintiff immediately called Lorraine Glover, secretary to NYCHA Commissioner Andrew, and asked for advice regarding how best to protest the assignment. (Chin Dep. at 78-80.) Ms. Glover recommended that plaintiff speak with Mr. Pagelson directly, and plaintiff did subsequently make an appointment with Mr. Pagelson. (Id.) When plaintiff spoke with Pagelson in person, he told her he was not proceeding with the reassignment, and indeed, he did not. (Def 56.1 Statement ¶ 30; Chin Dep. at 80.)

In November 2004, Pagelson and Aaron Mittelman, the Deputy Director of the Treasury Division, offered plaintiff a position in the Treasury Division running a control unit similar to the one she ran in the Disbursements Division. (Def 56.1 Statement ¶ 32.) Pagelson claims that, at the time, he believed that the reassignment would be a good career move for plaintiff. (Pagelson Decl. ¶ 9.) In an e-mail dated December 6, 2004, Pagelson also indicated to plaintiff that the reassignment "would provide the clearest path for advancement." (Ex. B to Pagelson Decl.) Plaintiff, however, rejected the transfer. (Def 56.1 Statement ¶ 34.) Plaintiff claims that the reassignment would have put her in an "entry level position, with meaningless assignments and no supervisory responsibilities." (Pl. Aff. ¶ 25.) She nevertheless thanked Pagelson and urged him to reconsider her for a promotion within the division. (E-mail from Chin to Pagelson dated Dec. 6, 2004, Ex. B to Pagelson Decl.)

Finally, on August 3, 2005, again after discussion with Pagelson, Thabet assigned plaintiff and Bharat Shah, a staff member in the Accounts Payable Division, to provide temporary assistance to the Capital Projects Administration Unit ("CPAU"). (Def 56.1 Statement ¶ 35-36.) Plaintiff did make herself available for this assignment, but the assignment "did not work out" and her involvement with CPAU ended on August 5. (Def 56.1 Statement ¶ 35-36.) Plaintiff claims that the assignment consisted of meaningless work, such as running one or two reports in an area with which she was unfamiliar. (Chin's Dep. at 73-76.) Later that month, plaintiff again complained to Pagelson, alleging "[racial] discrimination and retaliation" insofar as Thabet kept "sending [her] out to do lower level assignment[s]." (Chin Dep. at 139-40.) Without detailing specific instances, plaintiff further ...


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