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Gertskis v. New York City Dep't of Health and Mental Hygiene

March 26, 2009


The opinion of the court was delivered by: Thomas P. Griesa, District Judge.


This case is brought by pro se plaintiff Polina Gertskis against her former employer, the New York City Department of Health and Mental Hygiene ("DOHMH"), and an official at DOHMH named Peter Backman (collectively, the "City defendants"), as well as plaintiff's former union, District Council 37 and Local 375 of the American Federation of State, County, and Municipal Employees (collectively, "the Union").

Plaintiff asserts that the City defendants discriminated against her on the basis of her sex, national origin, and religion, sexually harassed her, and retaliated against her for filing complaints of discrimination. Plaintiff also asserts that the Union breached its duty to her of fair representation. Plaintiffs claims are brought under 42 U.S.C. §§ 1981 and 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., section 296 of New York's Human Rights Law, and section 8-107 of the New York City Administrative Code.

Defendants move for summary judgment. The motions are granted.


The following facts are undisputed, except where otherwise indicated.

Plaintiff is Jewish, female, and was born in the Ukraine. She immigrated to the United States in 1988 and became a U.S. citizen in 1989. In 1993, she was hired by DOHMH as an Assistant Chemist in the Public Health Laboratory, which tests a variety of samples for substances such as lead, drugs, and toxins.

The events at issue in this litigation began in 2001, when plaintiff received a performance evaluation from her supervisor rating her as "very good," rather than "outstanding." Plaintiff alleges that her supervisor chose not to assign her an "outstanding" rating solely because she is Jewish. Plaintiff also alleges that beginning in October 2003, the same supervisor assigned fewer overtime hours to plaintiff than he did to other staff, again for discriminatory reasons. This prevented plaintiff from earning the extra compensation that would have been paid for such work.

In November 2003, plaintiff and two other DOHMH Assistant Chemists filed grievances under their union contract claiming that they were working "out of title." That is, they asserted that they were performing the duties of an Associate Chemist, a more senior position, without being compensated at that level. DOHMH issued a decision on these grievances in April 2004. It found that one of plaintiff's colleagues was working out of title, and was therefore entitled to be promoted to the position of Associate Chemist. Plaintiff's grievance, however, was denied. As discussed below, the Union appealed this decision on plaintiff's behalf.

On May 5, 2004, plaintiff submitted the first of at least four complaints to the DOHMH Equal Employment Opportunity ("EEO") office. The complaint alleged that her supervisor had failed to promote her because of her Ukrainian origin. The EEO office determined that the complaint was unsubstantiated.

In October 2004, plaintiff applied for a vacant Associate Chemist position. However, DOHMH did not consider her application because it was received after the application deadline had passed.

On October 10, 2004, plaintiff submitted her second complaint to the EEO office. She alleged that her supervisor discriminated against her because of her religion by being overly critical of her work and failing to distribute overtime opportunities equitably. The EEO office determined that this complaint was also unsubstantiated.

On December 9, 2004, plaintiff applied and was interviewed for another vacant Associate Chemist position. Plaintiff was given a score of 14.5 for the interview, which placed her sixth in the group of ten employees interviewed. DOHMH ultimately awarded the position to another DOHMH employee, also a Ukrainian, Jewish woman, who had received an interview score of 25, had a broader educational background than plaintiff, and had undertaken a broader set of responsibilities at DOHMH than had plaintiff.

In February 2005, another Associate Chemist position became available. DOHMH reviewed the pool of candidates who had applied for the December 2004 vacancy, which included plaintiff, and offered the position to an individual from the private sector, a Nigerian woman. Although plaintiff had received a slightly higher interview score than the other individual, DOHMH believed that plaintiff did not have as much experience operating a type of laboratory equipment that would be central to the work of that position. Plaintiff, however, contends that she had sufficient experience with that equipment. Around the same time, another Assistant Chemist was given an "Associate Chemist" title. DOHMH states that this was done because the employee was also DOHMH's Quality Assurance Officer, and that this change did not require a salary increase.

On February 14, 2005, two Associate Chemists were assigned to supervise plaintiff. According to DOHMH, this occurred because the Associate Chemist who was supervising her had been assigned additional administrative responsibilities, and no longer had time to directly supervise laboratory work. According to plaintiff, this was done in retaliation for various complaints that she had made.

In April 2005, plaintiff asked for approval to take vacation for most of August 2005. Backman denied the request because plaintiff's laboratory was typically very busy in August, and plaintiff's absence during that time would have been disruptive to the laboratory's work. Plaintiff filed a grievance to challenge this decision, but the grievance was resolved when plaintiff agreed to take vacation somewhat later than she had initially requested.

On June 1, 2005, plaintiff submitted a third complaint to the EEO office alleging that she had not been promoted to an Associate Chemist position as a result of her sex, religion, and national origin. The EEO office determined that this complaint had no merit.

On July 21, 2005, according to plaintiff, Backman displayed a "facial expression of lust" during a conversation with plaintiff.

In October 2005, plaintiff met with Backman and alleged that her name had been improperly removed from hundreds of DOHMH records. She claimed that this was done in order to undermine her claim that she was working out of title. In response, Backman assigned a DOHMH employee to investigate the claim. After meeting with plaintiff and reviewing the relevant records, the investigator determined that plaintiff's claim was ...

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