The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Daniel Russell ("Plaintiff" or "Russell") commenced this action against defendants County of Nassau (the "County"), Nassau County Commission of Human Rights (the "HR Commission"), Todd Goldfarb ("Goldfarb"), in his individual and official capacity, Director of Personnel of Nassau County Commission on Human Rights*fn1, Nassau County Civil Service Commission ("Civil Service Commission"), Karle Kampe ("Kampe"), in his individual and official capacity, Commissioner of Nassau County Civil Service Commission (collectively "Defendants") alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), Title VI, 42 U.S.C. § 2000d, the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (the "FLSA"), New York State Human Rights Law, N.Y. Exec. Law § 296, et seq. ("NYSHRL"), 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985, Equal Pay Act of 1963, as amended and for various state causes of action. Presently before the Court is Defendants' motion for summary judgment. For the reasons set forth below, the motion is granted in part and denied in part.
The following facts are taken from the parties' 56.1 statements, to the extent properly supported by admissible evidence, and are undisputed unless otherwise noted.
The Civil Service Commission
The Nassau County Civil Service Commission is an agency, created pursuant to the County's Administrative Code, responsible for overseeing that the municipal agencies in Nassau County comply with and abide by the New York State Civil Service Law. It administers the provisions of the New York Civil Service Law with respect to the offices and employments in the classified service. See N.Y. Civil Serv. Law § 17.*fn2 Under New York law, public employment is either classified or unclassified. Id. § 35. Classified employees are further divided into four categories: exempt, non-competitive, labor and competitive. Id. § 40. Positions which are classified as competitive require the administration of an examination. Pursuant to the grades received and certain other criteria met by the individuals taking the examination, the Commission creates and certifies a list of eligible candidates for a particular competitive job title.
Kampe is, and at all relevant times was, the Executive Director of the Civil Service Commission. Nassau's Civil Service Commission has seven division: recruitment, classification, qualification, examination, placement, county transactions, and municipal transactions. The recruitment division administers all civil service examinations and is responsible for preparing examination announcements and reconciles examination results from the State Civil Service Commission prior to the establishment of eligible lists. The classification division defines all positions according to the duties to be performed by incumbents of those positions and establishes training and experience requirements for these positions. The qualification division reviews all applications for both examination and employment. The examination division plans, organizes, and supervises special and standard testing programs, determines areas appropriate for written tests, and reviews test items for subject matter based on standards and appropriateness of content. The placement division establishes, maintains and certifies eligible lists and is also charged with verifying that competitive class appointments are made in accordance with Civil Service law.
Under New York law, "before any new position in the service of a civil division shall be created or any existing position in such service shall be reclassified the proposal therefor, including a statement of the duties of the position, shall be referred to the municipal commission having jurisdiction and such commission shall furnish a certificate stating the appropriate civil service title for the proposed position or the position to be classified. Any such new position shall be created or any such existing position reclassified only with the title approved and certified by the commission." N.Y. Civ. Serv. Law § 22.
Plaintiff's Employment with the County
Plaintiff is an African-American male who began his employment with the County in November 1994 as a "Human Relations Representative I" with the County's HR Commission. Human Relations Representative I is within the "graded" salary plan and Plaintiff was placed at Grade 11 Step I with a starting salary of $32,375.00. Positions within the graded salary plans receive step increases each year. For positions represented by the Civil Service Employees Union, the collective bargaining agreement between the County and that union determines whether a position is within the graded salary plan. Salary increases for ungraded positions are not automatic. They must be recommended by the Department head and approved by the County Executive; salary requests for ungraded positions are "political" matters.
In January of 1996 Plaintiff was promoted to the position of Director of Job Development.*fn3 Plaintiff remained in that position until May 27, 2008 when he was appointed Acting Executive Director of the HR Commission. Director of Job Development is an exempt, ungraded position that under the terms of the relevant collective bargaining agreement is not entitled to step increases.*fn4 The relevant bargaining agreements*fn5 do provide, however, for certain yearly percentage increases for, inter alia, "the salary of ungraded employees in the negotiating unit."*fn6 (Ex. H to Famighetti Decl. at ¶ 25.1; Ex. I to Famighetti Decl. at ¶ 25-1.1.) Upon appointment to the Director position, Plaintiff's salary was significantly higher than the salary he received as a Human Relations Representative I. Plaintiff maintains that at the time of his appointment to the director position he was unaware that the position was ungraded and not within the step plan and that he would not receive automatic contractual yearly increases.*fn7
According to Plaintiff, it was not until January 1997, when he did not receive a step increase, that he became aware that the position was ungraded. After complaining to his then supervisor ("Rice"), Plaintiff received a seven thousand ($7,000) dollar raise in February 1997.
Sometime between January and May 1998, when he again did not receive a yearly step increase, Plaintiff discussed with his supervisor the possibility of being returned to his Human Relations Representative I position. Because he had not taken a leave of absence from the position, Plaintiff could not automatically be placed back into that position but had to be appointed from a competitive list for the title. In or about February 1999, Plaintiff submitted a request to take the promotional test for Human Relations Representative II but was told by a civil service representative that he could not be considered for promotion because he did not hold the position of Human Relations Representative I. Plaintiff was, however, permitted to sit for the open competitive examination for Human Relations Representative II position. Plaintiff did very well on the examination and was placed on the list for open competitive positions for Human Relations Representative II. (Russell Dep. at 154- 166.)
In January 2000, Plaintiff submitted an application to take the open competitive examination for the position of Cultural Affairs Specialist. The application was rejected by Civil Service Commission on the grounds that he failed to provide information showing he had the required one year experience and the experience plaintiff claimed was gained "out of title." Plaintiff appealed the determination by letter dated March 1, 2000, but the appeal was denied. The letter rejecting the appeal stated:
Your application was rejected because you did not show that you had the required one-year experience conducting cultural or recreational services, events or programs. In order to qualify, you would have to have experience for example, in an area where you planned or conducted programs such as concerts, dramatic presentations, lectures or similar activities, As Director, Job Development Center, your duties do not include responsibility for such work. Your duties, as listed in the class specification for your title, include supervising, planning, and directing the operation of the Job Development Center. In addition, you may perform duties related to those listed in the specification. New York Civil Service Law prohibits the acceptance of such out-of title experience. (Ex. AA to Famighetti Decl.)
Plaintiff contends that his experience was not gained out of title and that in any event Kampe and the Civil Service Commission had discretion to approve his appeal but did not, and Kampe's reasons for rejecting the application were a pretext for race discrimination.
In 2000, Plaintiff also filed an application with the Civil Service Commission to take the examination for Assistant Housing Project Manager, a position with the Hempstead Housing Authority. The application was approved in or about February 2000.
As early as 1999, Plaintiff believed he was not getting raises because he was being discriminated against, not by his supervisor, Mr. Rice, but by Mr. Rice's "superiors." However, in a memorandum to Rice dated August 18, 1999, Plaintiff, while expressing his frustration at not receiving the salary he felt he deserved, makes no claim that the lack of raises was due to racial discrimination. (See Ex. HH to Famighetti Decl.)
In 2001, Renaire Frierson ("Frierson") was appointed Executive Director of the HR Commissions, replacing Rice as Plaintiff's supervisor. On April 9, 2001, Frierson wrote to Kampe requesting "assistance" regarding Plaintiff:
[Plaintiff] has been with the Commission since 1994. From 1994 to present, [he] has only received a $5,000 salary increase. [He] is not in a graded salary plan, even though his title is not one of the listed exempt titles. In the interest of preserving the integrity of the Human Rights Commission and keeping valuable employees, request is hereby made for a title change and change in position which would place [Plaintiff] in the graded salary plan and give him a salary increase in line with his current director status and demonstrated supervisory ability. Perhaps, this will ensure that he remains with the Commission. [Plaintiff] should be in the $60,000 salary range. Enclosed is a resume, job description for his current title and the job specifications for several titles that seem suitable for [him]. Please review same. (Ex. DD to Famighetti Decl.) Kampe responded by Memorandum dated April 20, 2001, stating in pertinent part: "The information that we received describing Mr. Russell's present duties was reviewed, and it appears that his current title, Director, Job Development Center, is appropriate for the duties being performed. The Commission does not decide whether a position is in the graded or ungraded salary plan. In this case, the salary increases are contractual. We trust this answers the questions raised." (Id.)
On or about April 30, 2001, three grievances were filed on Plaintiff's behalf pursuant to the CBA. Two of the grievances alleged that the County violated the terms of the CBA when it "work[s] [Plaintiff] Out of Title, by requiring [him] to accomplish duties well beyond [his] job description. Additionally the terms of the contract are not being adhered to uniformly." (Ex. V, at p. 1 & 2, to Famighetti Decl.) The third grievance alleged that section 25.0 of the CBA was being violated when the County failed "to increase [Plaintiff's] salary by not moving [him] up in graded salary plan, and not giving [him his] January, 1998 - by 2%, July 1, 1999 - by 3%, January 1, 2000 by 4%, January 2001 by 2% increases. Additionally, the County fails to administer the terms of the agreement uniformly." (Id. at p.3.) The grievances were referred to advisory arbitration. The CSEA drafted a stipulation dated December 19, 2001 (the "Stipulation"), settling the grievances which provided that Plaintiff would be placed in Grade 16, step 5 effective 12/2000 and moved up to step 6 on 1/2001, as well as be paid "retro $owed." (Ex. M to Famighetti Decl.) Frierson signed the stipulation. It was not, however, put into effect.
Frierson sent correspondence dated December 19, 2001 to Goldfarb requesting that he make "the necessary changes to [Plaintiff's] personnel records" in accordance with the Stipulation. At that time Goldfarb, however, was no longer Director of Personnel and therefore had no authority over the matter.
Frierson also requested Kampe implement the Stipulation. Kampe testified that he could not address Plaintiff's situation and implement the Stipulation without the recommendation of Labor Relations. He also testified that the implementation of the Stipulation was not possible because it is a legislative issue to assign a position a grade.
Frierson also included funds for a salary increase and back pay for Plaintiff in her proposed budgets for the years 2004, 2005 and 2006.*fn8 Funds for this purpose were not approved. Frierson did not include a similar request in the proposed budget for 2007 as, according to Frierson, she was told on August 11, 2006 by William Cunningham, counsel to the County Executive, that funds for a salary increase for Plaintiff or funds for his back pay should not be included in the HR Commission budget.
On or about August 26, 2005, a breach of contract action was filed in New York State Supreme Court on behalf of the CSEA and Plaintiff seeking to enforce the Stipulation. On cross- motions for summary judgment, summary judgment was granted in favor of the County, the court holding that "[t]he absence of a signature from a representative of the Office of Labor Relations, together with Frierson's acknowledgment that she alone cannot create a binding stipulation, is fatal to this contract, as a matter of law . . . . Not only did the Office of Labor Relations not sign the Stipulation, but there is no evidence that is was so ordered by a mediator." (Ex. N to Famighetti Decl.)
Plaintiff did not file a Charge of Discrimination as required by Title VII until the fall of 2006, the exact date being in dispute. Plaintiff claims that he filed an initial complaint with the New York State Division of Human Rights (NYSDHR) on October 6, 2006 and signed and cross-filed a revised complaint with the NYSDHR/EEOC on November 8, 2008. Defendants claims no charge was filed until November 20, 2006. For purposes of this motion, the Court will presume the charge of discrimination was filed on the earliest of the dates in contention, to wit, October 6, 2006.*fn9
On December 11, 2006, a right to sue letter was issued. This action was commenced on April 23, 2007.
On May 27, 2008, Plaintiff was appointed Interim/Acting Director of the HR Commission.
Additional facts and factual contentions shall be addressed as appropriate.
I. Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008); Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009); Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See SCR Joint Venture, 559 F.3d at 137; Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)). "Rule 56(e)'s requirement that the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertions that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial." Patterson, 375 F.3d at 219 (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,183 F.3d 155, 160 (2d Cir. 1999)).
When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55.
A district court considering a summary judgment motion must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide the district court in its determination of a summary judgment motion. See Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. See id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not 'implausible.'" Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587).
In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-moving party. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). That being said, it is well-established that a non-movant cannot defeat summary judgment with nothing more than "unsupported assertions," Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995), or the allegations in its pleadings. See Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); see also Fed. R. Civ. P. 56(e). More particularly, although "summary judgment should be used sparingly" in cases where the material fact at issue is the defendant's intent or motivation, the plaintiff must nevertheless offer some "concrete evidence" in his favor, and is "not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). "The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
II. The Parties' Contentions
A. Summary of Plaintiff's Claims
Plaintiff maintains that he was the victim of race and color discrimination in that (1) Defendants "removed [him] from a graded civil service position and contractual 'step increases' without [his] knowledge based on [his] race and color unlike white employees," (Pl.'s Mem. at 14); (2) his "salary was continually denied parity with other white directors employed by" the County, (id. at 2, 15-16); (3) the County continually failed to pay him cost of living increases, (id. at 16); (4) he was prevented from "advancement in his career by pretextual and contradicting reasons given to bar his entrance to civil service exams and positions for which [he] was qualified," (id. at 2; 16-18 ); (5) he was repeatedly required to perform the same out of title duties without compensation, (id. at 10, 18-19); and (6) Defendants refused to resolve his grievances because of his race and color, (id. at 4.)
He further claims that the Defendants retaliated against him for protected activity by refusing to effectuate and execute the Stipulation, by delaying the settling of his grievances, by refusing to resolve his grievances issues when approached by individual County legislators, and by the direction to then Executive Director Frierson to permanently remove the line in the fiscal budget for a salary increase for Plaintiff. (Pl.'s Mem. at 19-22)
In support of their motion for summary judgment, Defendants maintain that (1) Plaintiff's Title VII claims of race discrimination are untimely, (2) Defendants Kampe and Goldfarb cannot be held personally liable under Title VII; (3) Plaintiff has failed to offer admissible evidence that Defendants intentionally discriminated against him; (3) the Title VII retaliation claim fails because Plaintiff did not engage in protected activity and did not experience an adverse employment action; (4) there is no evidence of a constitutionally protected conduct or retaliatory motive to support the § 1983 retaliation claim; (5) the claims under § 1981, 1983 and 1985 are untimely; (6) the Title VI claims are deficient because the HR Commission does not receive federal funding and the County cannot be held liable based on the actions of its employees; (7) there is no evidence of a conspiracy under § 1985 to deprive Plaintiff of his constitutional rights; (8) the § 1983 claim is deficient because there is no evidence to support Monell liability of the County and no evidence to support an equal protection claim; (9) Plaintiff has no viable FLSA claim; (10) the New York Executive law claims fail for the same reasons as the federal discrimination claims; and (11) all the asserted state law claims are subject to dismissal for failure to serve a notice of claim.
III. Timeliness of Plaintiff's Claims
Defendants contend that Plaintiff's Title VII, Title VI, § 1981, § 1983 and § 1985 claims are untimely. The Court shall address the issue of timeliness as to each of these statutes in turn.
Before filing a complaint in federal court, a Title VII claimant must first exhaust his administrative remedies by filing a charge of discrimination with the EEOC and receiving a "right to sue" letter. See Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999). In New York, a claimant must file the charge within 300 days of the alleged unlawful act. See 42 U.S.C. § 2000e-5(e); Tewksbury,192 F.3d at 327-28; see also Stuevecke v. N.Y. Hosp. Med. Ctr. of Queens, 2003 WL 22019073, at *3 (E.D.N.Y. Aug. 26, 2003) (citing 42 U.S.C. § 2000e-5(e)(1)). The filing requirement is analogous to a statute of limitations, barring all claims arising outside the 300-day period. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). Like statutes of limitations, the time limits for filing with the EEOC "are subject to 'waiver, estoppel, and equitable tolling.'" Mazurkiewicz v. New York City Health & Hosp. Corp., 2009 WL 4825381, *1 (2d Cir. Dec. 16, 2009) (Summary Order) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).
The 300-day limitation period generally begins to run when the plaintiff knows or should know of the occurrence of the alleged discriminatory act. Morse v. Univ. of Vt., 973 F.2d 122, 125 (2d Cir. 1992). That is, the time bar is typically based on when the discriminatory acts happen, not when their effects are felt. See Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980). The Supreme Court has made it clear that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). "Discrete discriminatory acts" include "termination, failure to promote, denial of transfer, or refusal to hire." Id. at 114 (emphasis added).
In Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), the Supreme Court held that an employer's decision with respect to setting pay is a discrete act of discrimination, and that the relevant period of limitations begins to run when the act first occurs. The Ledbetter decision was superseded by the enactment of the "Lilly Ledbetter Fair Pay Act of 2009" ("The Ledbetter Act"), which amended 42 U.S.C. § 2000e-5(e) to add the following provisions:
(3)(A) . . .[A]n unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
(B) In addition to any relief authorized by . . . 42 U.S.C. 1981a, liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.
Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3, 123 Stat. 5, 5-6. The Ledbetter Act deems each paycheck issued pursuant to a discriminatory compensation decision or pay structure an independent, actionable act. It applies retroactively "to all claims of discrimination in compensation under Title VII . . . that are pending on or after [May 28, 2007]." Id. at 123, Stat. 5, 6-7.
As noted earlier, there is a dispute as to the actual date of Plaintiff's filing of his administrative claim. Drawing all inferences in Plaintiff's favor and using the earliest claimed date of filing, to wit October 6, 2006, the 300 day rule requires that the act which form the basis of Plaintiff's claims ...