The opinion of the court was delivered by: Gershon, United States District Judge
Plaintiff Caroline N. Westbrook, an African-American woman formerly employed by defendant City University of New York ("CUNY") brings this action against CUNY and three of its employees who are individually named: Matthew Goldstein, Emma Espino Macari, and Lia Gartner (the "individual defendants"). Plaintiff alleges discrimination, retaliation, and creation of a hostile work environment on the basis of her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"); 42 U.S.C. §§ 1981 and 1983; and the New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq ("NYSHRL"). Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on all of plaintiff's claims against them.
Unless otherwise indicated, the following facts are undisputed.
CUNY is a university system comprised of 11 senior colleges, six community colleges, and four graduate and professional schools. See N.Y. Educ. Law § 6203. Within CUNY, the Office of Facilities Planning, Construction, and Management ("OFPCM") supervises the planning, construction, and management of the university's construction projects and rehabilitation of current capital facilities. OFPCM consists of three units: (1) the Department of Space Planning and Capital Budget ("SPCB"), which oversees the long-range planning and programming of CUNY's capital building program and coordinates space management and reporting of facilities utilization on all campuses; (2) the Department of Design, Construction and Management ("DDCM"), which plans and implements CUNY's building programs and coordinates facilities maintenance; and (3) the City University Construction Fund ("CUCF"), a public benefit corporation that provides facilities for the university and supports its educational purposes.
Defendant Matthew Goldstein, a white male, has served as Chancellor of CUNY since September 1, 1999. As Chancellor, Mr. Goldstein is the chief executive, educational, and administrative officer of CUNY as well as the chief educational and administrative officer of the other educational units of CUNY. See Goldstein Exh. A (CUNY Bylaws). Both defendants Emma Espino Macari and Lia Gartner are employees of OFPCM, which, as of November 2005, was comprised of 38 Caucasian employees and 39 employees belonging to various protected classes.*fn1 From September 1993 until her retirement in June 2006, Ms. Macari, an Hispanic female, served as the Vice-Chancellor of OFPCM, working as the senior administrator responsible for all physical plant maintenance and operations, facilities planning, and capital programs for CUNY's various campuses. Ms. Gartner, a white female, served as the Director of DDCM from 1995 to January 2001 and then as the Director of SPCB from approximately September 2002 until February 2004.*fn2
In April 1999, CUNY issued a Personnel Vacancy Notice regarding an open employment position as "Office Manager/Executive Assistant to Director" in the SPCB unit of OFPCM. A search committee consisting of representatives from OFPCM's three units-Ms. Gartner, the then Director of DDCM, Robert Zimring, the former Director of SPCB, and Russell Nobles, the former Deputy Executive Director and General Counsel of CUCF-interviewed a number of highly qualified candidates for the open position. The search was thorough and complied with CUNY's affirmative action guidelines.
On May 18, 1999, plaintiff interviewed with the search committee, and by letter dated May 21, 1999, plaintiff thanked each of its members for meeting with her and stated that "[it] was such a pleasure to meet all of you" and that "[t]he interview was a pleasant experience." Gartner Exh. A. Plaintiff later testified during her deposition that the contents of her letter were untrue as related to her experience with Ms. Gartner because Ms. Gartner was "combative, hostile, and negative" toward her during the interview. Westbrook Dep. at 58-59; Pl.s' Decl. ¶¶ 17-18. Specifically, plaintiff testified that Ms. Gartner spent "a lot" of time criticizing the choice of words used on her resume and commenting that her tone "wouldn't work with the union staff." Westbrook Dep. at 40-46.
At some point subsequent to the committee interview, plaintiff was invited to a second, one-on-one interview with Ms. Macari. Plaintiff testified that, in addition to explaining what was expected of the new hire, Ms. Macari made unsolicited comments about Ms. Gartner, describing her as a "perfectionist" and "making excuses" for Ms. Gartner's behavior and attitude toward plaintiff during the first interview. Westbrook Dep. at 50-52; see also Pl.'s Decl. ¶ 17. Plaintiff characterized these comments as "strange" because she had not brought up Ms. Gartner during their conversation and Ms. Macari did not mention the other two members of the committee. Id.
On June 1, 1999, upon the recommendation of the search committee, Ms. Macari offered the job to plaintiff. According to defendants, the search committee's recommendation was unanimous as to its preference for plaintiff, who, at the time, possessed approximately fifteen years of experience in office management and administration in legal and other service-oriented firms and was also enrolled in a Masters in Public Administration program at one of the CUNY colleges. Although Ms. Macari preferred the other finalist, Glenda Brooks, also an African-American female candidate, she ultimately followed the committee's recommendation as to this position and offered Ms. Brooks a different position as Special Assistant to CUCF. Plaintiff disputes that the committee's recommendation was unanimous and claims that Ms. Gartner did not approve of plaintiff's appointment to the position, given Ms. Gartner's negative attitude toward her during the committee interview as well as Ms. Macari's unsolicited "excuses" for Ms. Gartner. Plaintiff also testified that, between September 2002 and February 2003, she was expressly told by Eileen Hawkins, the former executive assistant to Ms. Macari, that Ms. Gartner had been opposed to her hiring.
Plaintiff subsequently accepted the offer and was hired in the functional title of "Office Manger/Executive Assistant" and in the payroll title of "Higher Education Assistant." As a Higher Education Assistant, plaintiff occupied a non-teaching, administrative position within CUNY's Higher Education Office ("HEO"). Whereas most of the other staff members in the SPCB and the DDCM units of OFPCM were comprised of project managers, architects, planners, and engineers, who were responsible for supervising and developing capital budget requests for multimillion dollar construction projects and renovations of existing facilities, plaintiff's primary responsibilities included serving as an executive assistant to the Director of SPCB, supervising all support staff who did not report to a director of one of the OFPCM units, overseeing administration of personnel issues, and interacting with building management as the sole office manager at 555 West 57th Street in Manhattan (the "57th Street Office"), where plaintiff, the OFPCM offices, and outsider service providers were based.
The conditions of plaintiff's employment as a Higher Education Assistant were governed by the Collective Bargaining Agreement ("CBA") between CUNY and the Professional Staff Congress/CUNY ("PSC"), the union representing CUNY's instructional staff employees. The CBA provides that the HEO series of titles, such as plaintiff's, are subject to a series of annual or biannual reappointments that are offered at the discretion of CUNY. Article 13.3.b of the CBA further provides that, upon the recommendation and approval of the appropriate official and Board of Trustees, an employee may become exempt from the discretionary annual reappointment process if he secures a Certificate of Continual Administrative Service ("CCA"). The CCA is granted to employees who receive a sixth reappointment upon completing eight consecutive years of service and permits termination only under a narrow set of circumstances, such as the receipt of three consecutive unsatisfactory annual evaluations in three successive fiscal years.
Prior to the 2002-2003 fiscal year, the salaries of "tax levy" employees were paid directly out of the CUNY operating budget. However, pursuant to a resolution adopted by CUFC in 2002, CUNY established a "reimbursement" procedure for the payment of these salaries, under which the operating budget would advance the salary amount and then the capital budget would reimburse that amount back into the operating budget. The capital budget, which is financed from the proceeds of bonds sold by the Dormitory Authority of the State of New York ("DASNY"), are funds allocated to CUNY for its capital construction and rehabilitation programs.*fn3 The change was implemented to reflect the fact that these employees were a part of the overall costs for the university's capital construction and rehabilitation programs.
II. Plaintiff's Tenure at CUNY
Plaintiff, initially hired for a July 1, 1999 to June 30, 2000 term, was reappointed annually to her position three times. Each reappointment letter, sent by Ms. Macari at the end of the preceding term, stated that "[t]his offer is subject to financial ability" and that "[t]here is no presumption of employment beyond the period indicated." See, e.g., Macari Exh. C; Pearson Exh. E. Plaintiff testified that she understood that there was no guarantee that she would keep her position beyond the year of appointment and that CUNY had the right not to reappoint her to the position for another year.
Throughout plaintiff's tenure at CUNY, she reported to the Director of SPCB. From 1999 until his retirement in 2002, Robert Zimrig, a white male, served in that capacity. Eric Anderson, another white male, then became the Director until September 2002, when Ms. Gartner took over the position. During the time plaintiff worked under Mr. Zimrig and Mr. Anderson, she received satisfactory employee evaluations and almost all outstanding ratings on the performance evaluation grid from her supervisors. In the summer of 2001, plaintiff also received from Mr. Anderson a recommendation for a "step increase" in her salary, which Ms. Macari joined in endorsing because of plaintiff's "invaluable" performance. Pl.'s Exhs. E, F. Despite her favorable comments about plaintiff at the time, Ms. Macari stated in her declaration that, in reality, she had "misgivings" about plaintiff's performance and had therefore rejected a similar recommendation made by Mr. Zimrig in 2000; she, however, decided to endorse Mr. Anderson's recommendation a year later "in order to show support for [her] director... and as an incentive for improvement by plaintiff." Macari Decl. ¶ 13.
Plaintiff claims that she became a target for termination in the fall of 2002, around the time that Ms. Gartner became the Director of SPCB and her direct supervisor. According to plaintiff, on or about September 16, 2002, Mr. Anderson informed her that Ms. Macari and Ms. Gartner were seeking ways to terminate her employment and that she should e-mail her resume to him so that he could help her find another job. Plaintiff accordingly sent her resume to Mr. Anderson the next day and began a job search in response to this information.
Plaintiff claims that, about one week prior to becoming Director of SPCB, Ms. Gartner began complaining to her about the physical appearance of the 57th Street Office and that, when Ms. Gartner officially became her supervisor, she continued to hold plaintiff solely responsible for the cleanliness of the office even though cleaning was not a part of her job description. Plaintiff further testified that, while Ms. Gartner did not explicitly order her to clean the kitchen with her own hands, she did state that plaintiff was responsible for making sure the kitchen was clean and rhetorically asked her, "With no cleaning staff, who's gonna do it?" Westbrook Dep. at 140. Plaintiff also testified that, in at least one instance, Ms. Macari ordered plaintiff in front of her co-workers to remove her food items from the kitchen.
According to defendants, Ms. Macari and plaintiff simply had "differences of opinion about plaintiff's role as office manager in correcting problems with the physical appearance of the 57th Street Office." Gartner Decl. ¶ 12. Ms. Macari stated in her declaration that plaintiff "did not take responsibility for the current condition of the office" even though the facility was "not as neat and polished as it had been," and the kitchen in particular was "unsanitary." Id. ¶¶ 13, 15. Without blaming plaintiff for the condition, Ms. Gartner also requested that, "as Office Manager, she take the steps to locate a cleaning service provider to help rectify the situation." Id. ¶ 15. Ms. Gartner denies ever telling "plaintiff that she should personally clean those areas" and that she did not expect her to do so. Id.
Plaintiff disputes that she had any such "differences of opinion" regarding her role. In response to their conversations, plaintiff claims she suggested initiating a department-wide meeting in order to discuss the office's appearance and to discuss who had authority to implement the necessary changes but that Ms. Gartner refused such requests "on many occasions." Pl.'s Decl. ¶ 72. Plaintiff also held individual conferences with employees under her supervision regarding the proper protocol for discharging their job responsibilities, and sent out e-mails and memoranda to the entire department and individual employees, seeking their cooperation in maintaining the cleanliness of the building. Plaintiff further denies that Ms. Gartner asked or expected her to hire a cleaning service provider, though she nonetheless spoke with Al Toscano, the Director of Real Estate and Administrative Contact, about researching the possibility of hiring cleaning service providers. Westbrook Dep. at 74-76 (testifying that Ms. Gartner "just complained about the office space" and did not tell her to research cleaning service providers). Plaintiff claims that it was ultimately Ms. Macari who negotiated the terms of the contract with First Quality Maintenance, the company eventually hired to perform cleaning services at the 57th Street Office. Although defendants claim the problem ended once First Quality Maintenance was hired, plaintiff maintains that Ms. Gartner continued to complain about the cleanliness of the office.
In addition to these "kitchen instances," plaintiff testified that, at some point in 1999 or 2000, she heard Ms. Gartner refer to the students of Medgar Evers College, a predominantly African-American school, in a derogatory manner. Specifically, during a discussion about the college receiving trailers, Ms. Gartner remarked that "those people" should not receive "anything more than absolutely necessary." Westbrook Dep. at 91-92. Furthermore, although Ms. Gartner "never directly said anything to [plaintiff] about [her] race" during the entire time she worked at CUNY, plaintiff testified that she "always made comments about [her] tone" and how it was "too authoritative." Id. at 89-90. Plaintiff also claims that many other individuals have filed lawsuits against Ms. Gartner, as she personally witnessed a file room full of lawsuits that were either settled or pending in 2002 naming Ms. Gartner as a party. Defendants dispute plaintiff's claim and maintain that, during Ms. Gartner's entire tenure at CUNY, no other staff member of OFPCM apart from plaintiff ever filed a grievance, charge, or complaint of race discrimination against her. Defendants also point out that, during Ms. Gartner's tenure at CUNY as the Director of DDCM, she recommended only two individuals for termination-Charles Collins and Corwin Frost-both of whom were white males.*fn4
III. CUNY's 2003 Budgetary Constraints
In 2003, as a result of reduced state appropriations for fiscal year 2003-2004, CUNY was required to implement various strategies to reduce costs and increase revenue. Accordingly, in September 2002, Mr. Goldstein issued a memorandum to all of CUNY's college presidents directing that "colleges will be expected to view vacancies resulting from [CUNY's early retirement program] as an opportunity to re-structure administrative support in a manner that reduces costs and provides greater efficiencies." Dobrin Exh. A. Mr. Goldstein further instructed that "the replacement of non-teaching personnel will be subject to authorization" by CUNY and that "[a] rigorous protocol will be developed, which will require campuses to justify replacements taking into account the critical nature of the position, as well as the need to manage the budget, reduce costs and re-shape administrative functions." Id.
Effective February 3, 2003, CUNY also instituted a hiring freeze for all full-time and part-time non-teaching positions. Exceptions to the freeze were limited to bona fide offers of employment made on or before the effective date of the freeze and to specific positions deemed critical to health and safety or essential to CUNY operations. A committee chaired by Allan H. Dobrin, Senior Vice-Chancellor and Chief Operating Officer, reviewed written exception requests containing supporting justification from a College President or Vice-Chancellor.
B. Plaintiff's Non-reappointment
At or about the time the hiring freeze was announced, Mr. Dobrin held a senior staff meeting with the three Vice-Chancellors who reported directly to him, including Ms. Macari. During the meeting, Mr. Dobrin directed, and the participants agreed, that in light of the financial constraints that year, they should review their respective staffs with the goal of eliminating unnecessary positions whose functions could be assumed by other employees. Mr. Dobrin could not recall discussing a specific dollar amount with respect to potential job cuts or providing Ms. Macari with "specific" parameters. Dobrin Dep. at 14-16. Ms. Macari testified that, while she was not given a "specific number," Mr. Dobrin provided a "range to effect some major reductions" in the approximate figure of about a $150,000 to be cut from the operating budget. Macari Dep. at 115-16.
Ms. Macari decided to respond to Mr. Dobrin's directive by focusing on reducing the administrative support staff of OPFCM rather than the construction, design, and planning staffs since there were several vacancies in those staffs she believed needed to be filled. Although some members of the administrative staff could not be eliminated because they were protected by a CCA, plaintiff, who was only a fourth year employee, along with at least three other administrative employees were unprotected by a CCA: (1) Ms. Brooks, an African-American woman, who earned more in salary than plaintiff at the time the hiring freeze was implemented; (2) Mr. Lechicky, a white male, who was hired about a year after plaintiff; and (3) Jie Liu, an Asian-American woman who held an HEO Associate position as Payment Supervisor in the Accounting Unit of DDCM.
Based on her personal knowledge of the functions of the staff, Ms. Macari determined that plaintiff did not have to be reappointed in order for OFPCM to continue its operations. Specifically, Ms. Macari testified that it was more feasible to redistribute plaintiff's responsibilities than those of Ms. Hawkins and Mr. Lechicky, two white employees who provided executive support to Ms. Macari, and Joanne Prestka, then Director of DDCM, respectively. Ms. Macari also considered Ms. Hawkins, her long-time assistant who essentially functioned as her chief of administrative staff, as "irreplaceable" and believed that Mr. Lechicky, who worked as OFPCM's Capital Program Coordinator, possessed specialized experience and skills in administering construction project reports and proposals that neither plaintiff nor other members of the administrative staff could have assumed. Ms. Macari also did not consider Ms. Liu an "appropriate" person to consider for non-reappointment because she performed "a large number of critical accounting and payment functions," including processing all CUNY rental property payments and expenses as well as processing city and state capital project payments for all CUNY campuses. Macari Reply Decl. ¶ 18.
Accordingly, on or about February 26, 2003, Ms. Macari informed plaintiff that she would not be reappointed to her position for the July 1, 2003 to June 30, 2004 term. Plaintiff received a standard non-reappointment letter from Ms. Macari, which briefly stated that "[t]his letter shall constitute formal notice that your appointment... shall not be renewed." Macari Exh. L. Defendants state that the CBA does not require a non-reappointment letter to state the reason for non-reappointment. Plaintiffs claim that this is not true with respect to employees who have been reappointed four or more times and cites ...