The opinion of the court was delivered by: Matsumoto, United States District Judge
Plaintiff Lisa Hall ("plaintiff" or "Hall") brings this action alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000, et seq. ("Title VII") and New York State Executive Law § 296 ("NYSEL").*fn1 (See generally, Doc. No. 1, Complaint ("Compl.") at 1; Doc. No. 27, Supplemental Complaint ("Suppl. Compl.") at 2.) Plaintiff alleges that she was discriminated against because of her race, gender, and age,*fn2 and retaliated against for filing complaints of discrimination. (See Compl. at 3.) Plaintiff alleges that defendant New York City Department of Transportation ("defendant" or "DOT") failed to promote her, denied her overtime opportunities, scrutinized her work, and subjected her to a hostile work environment. (Id.; see also Suppl. Compl. at 1-2.)
Defendant now moves for summary judgment, pursuant to Federal Rule of Civil Procedure 56, seeking dismissal of plaintiff's action. For the reasons set forth herein, defendant's motion is granted in part and denied in part.
The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1, are undisputed unless otherwise indicated. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to the nonmoving plaintiff.
Plaintiff is an African-American female who was born in 1962 and began working for defendant in March 2000. (Doc. No. 49, Defendant's Rule 56.1 Statement ("Def. 56.1 Stmt.") ¶¶ 2-3.) Plaintiff is currently and at all times relevant to this action a provisional letterer (sign painter) and works in DOT's Maspeth, Queens facility. (Id. at ¶ 3.) As a provisional employee, plaintiff serves at will and was not required to pass any examination to obtain her position. (Doc. No. 52, Declaration of Daniel Chiu ("Chiu Decl."), Ex. C, Deposition of Lisa Hall on May 4, 2007 ("Pl. Dep.") at 7-8.)
A.Alleged Hostile Remarks and Conduct
Plaintiff testified that she was subjected to discriminatory comments beginning in March 2000. (Def. 56.1 Stmt. ¶ 5; Pl. Dep. at 41.) According to plaintiff, she was told in March 2000 by David Leschke, DOT's Director of Maspeth Central Operations, that "I don't know where you came from, but you may not have some of the abilities or skills of the men to do the work or to get the work done." (Pl. Dep. at 41; Def. 56.1 Stmt. ¶ 19.) Plaintiff further testified that later that year, Anthony Spagnuolo, plaintiff's supervisor from 2000 through 2003, told plaintiff that she had a "funny way of making signs for a girl[,]" "may not be able to lift the signs because [she] is a girl" and did "not make signs like Henry Chin[,]" a male employee of the DOT. (Pl. Dep. at 120; Def. 56.1 Stmt. ¶ 10.) According to plaintiff, Spagnuolo also told her that she was a "spy" because she had recorded her co-workers' activities in her daily work reports and that she was "getting the guys in trouble[.]" (Pl. Dep. at 121-22.) Further, plaintiff testified that in 2000, she overheard David Misla, a Traffic Device Maintainer ("TDM") with DOT, state that he wanted to "mount" and "get with" plaintiff. (Id. at 117-18.)
Plaintiff also alleges that between 2000 and 2001, she "had to deal with physical items being thrown" at her. (Doc. No. 59, Declaration of Lisa Hall ("Pl. Decl.") ¶ 8.) Plaintiff states that her co-workers "would often have tennis ball fights" and that during these fights, tennis balls were thrown in her direction "in an attempt to threaten and harass" her. (Id.)
Plaintiff asserts that she also experienced gender discrimination in 2003. (See Def. 56.1 Stmt. ¶ 8.) Plaintiff testified that in 2003, she was told by David Ramos, a TDM and the shop steward for traffic device maintainers at the Maspeth facility, that DOT could not install a women's bathroom on the first floor of the facility where plaintiff worked until 12 to 15 women were working on the first floor. (Pl. Dep. at 116-118.) Plaintiff testified that she and a "senior citizen female" both "campaigned for a bathroom" on the first floor and were told by their union that at least 12 to 15 female employees had to work there before a bathroom could be installed. (Id. at 82-83.) Plaintiff was directed to place her request in writing. (Id. at 83.) Ultimately, a men's bathroom on the first floor was converted into a women's bathroom. (Id.) Plaintiff testified that she and her female co-worker volunteered to "maintain the appearance and quality" of the bathroom and bought cleaning supplies and mops (id. at 84), "not as a condition of having the bathroom" but because "it's something we chose to do" (id. at 85).
Additionally, plaintiff testified that Director Leschke objectified plaintiff as a female when he allegedly used the word "pee" referring to urination, because plaintiff believed that the word "'pee' . . . is a feminine form of 'piss.'" (Id. at 80-81.) Plaintiff also testified that Acting Art Room Supervisor Jay Wenz called plaintiff a "douche bag" in November 2003, and that he repeated this comment in April 2004, November 2004 and January 2005. (Def. 56.1 Stmt. ¶ 17; Pl. Dep. at 86-87, 142.) Plaintiff further testified that when she was called a "douche bag" in April 2004, Leschke laughed and failed to "curb that type of language or attitude at the time." (Pl. Dep. at 86.) Additionally, plaintiff testified that in April 2004, Leschke attempted to "attack" her "with a set of sign plates" that plaintiff had "just made and left for him." (Pl. Dep. at 72-73.)
Plaintiff asserts that Director Leschke continued to discriminate against her in 2004 on the basis of her gender. (See Def. 56.1 Stmt. ¶ 19.) Plaintiff testified that she approached Leschke to complain that Jay Wenz had allegedly attempted "to physically attack" plaintiff after he was dissatisfied with her work. (Pl. Dep. at 87.) In response, Leschke allegedly told plaintiff that Wenz had done nothing wrong and that Wenz was "love[d]." (Id. at 88.) According to plaintiff, Leschke told plaintiff that she was "cold[,]" "rude" "soft" and "a girl[,]" and that she "may not have some of the abilities to do the work being that [she is] a girl." (Id. at 88.)
Plaintiff asserts that she experienced race discrimination in 2004. (See Def. 56.1 Stmt. ¶ 13.) Specifically, plaintiff testified that in April 2004, John Reda, a supervisor at the Maspeth facility, repeated a comment purportedly made by Director Leschke comparing plaintiff to Omarosa Manigault-Stallworth, a participant on the television program "The Apprentice," whom plaintiff described as "the villain[.]" (Id. ¶ 13; Pl. Dep. at 63-64, 124-125.) Plaintiff believed that she was compared to Ms. Manigault-Stallworth because plaintiff is African American and perceived as a villain amongst her colleages. (See Pl. Dep. at 64; see also Pl. Decl. ¶ 11.) Plaintiff does not claim that Mr. Reda made any other discriminatory comments. (Def. 56.1 Stmt. ¶ 14.) Plaintiff states, however, that "supervisors" said "things like 'I saw your puss on T.V.'" (Pl. Decl. ¶ 11.)
Plaintiff asserts that she "had to deal with physical unwarranted touching." (Pl. Decl. ¶ 7.) Plaintiff asserts that on September 30, 2004, she "was physically shoved by Mr. Wenz." (Id.) In addition, plaintiff testified that on December 10, 2004, she was "assaulted" by Jay Wenz. (Pl. Dep. at 151; see also Deposition of Lisa Hall on April 1, 2008 (Pl. Suppl. Dep.") at 77.) Specifically, plaintiff testified that Wenz pushed a colleague, Al Meyers, to break up a conversation between plaintiff and Meyers, and that Meyers then collided with plaintiff. (Pl. Dep. at 137.) Plaintiff states that this occurred "for no apparent reason whatsoever." (Pl. Decl. ¶ 7.) Plaintiff also states that Wenz "waved a tightened fist at me, like he was going to hit me." (Id.) On another occasion, Wenz also shoved plaintiff "out of the way" when she was in the darkroom speaking with a colleague so that Wenz "could beat up Peter Levine." (Pl. Dep. at 137.)
Plaintiff further asserts that she was discriminated against because of her age. (Compl. at 3.) Plaintiff testified that she was asked about her age twice during her employment with DOT. (See Pl. Dep. at 92-93.) Specifically, plaintiff testified that she was asked about her age on employment forms she was requested to complete when she commenced employment with DOT. (Id. at 92.) Additionally, plaintiff testified that in 2004, DOT blacksmith Frank Cotnick, who never supervised plaintiff, asked plaintiff about her age "out of the blue." (Id.) Plaintiff responded, "in my forties" and some unidentified person replied, "she's over 21." (Id.) Plaintiff testified that aside from these two instances, there were no other comments about her age that she found discriminatory. (Id. at 93.) Plaintiff, however, also testified that she was told to "grow up" by Wenz and Leschke. (Id. at 80, 86.)
Plaintiff testified that in 2005, she experienced both gender and race discrimination. Specifically, plaintiff testified that Jay Wenz stated in April 2005 that plaintiff lived with "mixed-race people" (Pl. Dep. at 141) and, on July 28 2005, described plaintiff as "trouble" because she "had a lawsuit against the city." (Id. at 127.) Additionally, plaintiff testified that in October 2005, Director Leschke called her a "fucking cunt." (Id. at 74.) Plaintiff states that when she complained to Leschke about this language, he allegedly responded, "If you have a problem with the way things work at Maspeth, then you can be shipped back to where you came from." (Pl. Decl. ¶ 11.) Plaintiff "took this as a direct comment" about her race and wondered whether Leschke "was . . . thinking about shipping [her] back to Africa[.]" (Id.) Plaintiff testified that aside from the October 2005 instance, Leschke did not again refer to her as a "cunt." (Pl. Dep. at 77.) No one else at DOT referred to plaintiff in this manner. (See id. at 78.)
Plaintiff also testified that in 2005, she felt threatened when Wenz brought to work a gun concealed in a box marked "Remington . . . Product Gun[.]" (Id. at 131.) Plaintiff testified that Wenz turned the box in her direction so that she could read the box, while she was seated on a bench with several co-workers. (Id.; Pl. Decl. ¶ 12.) According to plaintiff, Wenz boasted that he was a "hunter." (Pl. Decl. ¶ 12.) Plaintiff alleges that Wenz once stated sought her out and said "I'm a hunter. I hunt people. Is Lisa [Hall] in the booth?" (Pl. Decl. ¶ 12.)
Plaintiff further testified that on January 26, 2006, she and a Caucasian colleague, Thomas Ferstler, were nearly "run over" by a speeding truck driven by a co-worker, Jason Brennan, at the Maspeth facility. (Pl. Dep. at 74-75, Pl. Suppl. Dep. at 77-78.) As a result, plaintiff attempted to obtain a form to file an incident report but was told by a supervisor that he did not have a form and that because plaintiff was not hurt and "truck wasn't hurt[,]" "there's nothing to talk about." (Pl. Dep. at 167.) Plaintiff obtained the form and filed an incident report the following day alleging that Brennan had traveled at "an excessive rate of speed" toward plaintiff and Ferstler and "continued speeding" into the Maspeth facility. (Chiu Decl., Ex. T, Security Incident Report.) The report does not claim that the incident was motivated by plaintiff's race or gender. (See id.) DOT investigated the incident and substantiated the allegation that Brennan drove at an excessive rate of speed.
(Def. 56.1 Stmt. ¶ 30.) As a result, Brennan was issued a verbal reprimand. (Id.)
Later in 2006, plaintiff overheard Director Leschke make a derogatory comment concerning another woman. According to plaintiff, Leschke commented that a delivery person "should have played with his wife's pussy a little bit more to make her happy." (Pl. Dep. at 40-41.) Plaintiff testified that she heard Leschke use the term "puss" or "pussy" a "few times . . . sprinkled here and there . . . ." (Pl. Dep. at 80.)
Plaintiff also testified that in 2006, she overheard two male co-workers talking about her. (See Pl. Dep. at 107-108.) Plaintiff testified that she overheard a male co-workers discussing that she "likes Mandingo dick." (Id. at 108.) Plaintiff believed this to be a discriminatory comment about her race and gender, however, she "did not address" the issue. (See id. at 108-109.)
Plaintiff claims that Gino Magenta, Jr., plaintiff's supervisor since 2004, videotaped her without her consent and despite her protest. (Pl. Decl. ¶ 13; Def. 56.1 Stmt. ¶ 25.) Plaintiff believes that she was videotaped because of her race or gender. (Suppl. Pl. Dep. at 28.) By contrast, Mr. Magenta states that he "brought a video camera to work to videotape [his] workplace to show [his] friends and family [his] job site and what [he] did at work." (Doc. No. 51, Declaration of Gino Magenta, Jr. ("Magenta Decl.") ¶ 3.) Mr. Magenta also states that he did not bring the video camera to work to videotape plaintiff. (Id. ¶ 4.)
B.Alleged Disparate Treatment
Plaintiff claims she has been denied the opportunity to become a permanent, non-provisional letterer, despite having received an overall rating of "good" on her 2000-2006 performance evaluations. (Pl. Decl. ¶¶ 15, 17.) Plaintiff states that she applied for a permanent letterer position by offering her résumé to her supervisor who, according to plaintiff, declined to accept the résumé and said "You already have a job." (Id. ¶ 17.) Plaintiff does not indicate whether she followed the proper procedure required to apply for the permanent letterer position. Plaintiff's Complaint, Supplemental Complaint and Charge of Discrimination before the Equal Employment Opportunity Commission ("EEOC") do not assert that she was denied promotion to the permanent letterer position.
Plaintiff also alleges that she was unlawfully denied overtime opportunities as a result of discrimination. (See Compl. at 5.) Plaintiff states that she was told that overtime was available only to "senior" and "permanent" letterers. (Pl. Dep. at 34-35; Pl. Decl. ¶ 17.) Plaintiff testified that three permanent letterers are over age 40, and that there are four permanent letterers and four provisional letterers. (Pl. Dep. at 10-12, 34-35.) Plaintiff further testified that she received overtime assignments (Pl. Dep. at 34), and states that certain offers of overtime employment allegedly were "sham[s]" because they were made at the "last minute" and did not provide plaintiff with "enough notice to be available" for the overtime assignment (Pl. Decl. ¶ 17).
Plaintiff also contends that she was subject to "excessive scrutiny." (See Doc. No. 55, Plaintiff's Memorandum of Law ("Pl. Mem.") at 9.) Plaintiff states that she was "told to keep notes regarding everything that affected [her] daily work." (Pl. Decl. ¶ 10.) Although plaintiff's counsel argues that "[n]one of the white male employees were asked to keep such a log" (Pl. Mem. at 10) (citing Pl. Decl. ¶ 10), plaintiff does not so allege. Plaintiff states that her note taking made her co-workers "suspicious" of her. (Pl. Decl. ¶ 10.)
Plaintiff also alleges that she was "written up, reprimanded, and otherwise punished for transgressions that were manufactured" by her supervisors. (Pl. Decl. ¶ 20.) In support of her allegation, plaintiff testified that she was accused of altering a leave request form. (Pl. Dep. at 27-31; Pl. Decl. ¶ 16.) As a result, plaintiff was docked one day's pay for an absence without official leave ("AWOL"). (Pl. Decl. ¶ 16; Pl. Dep. at 27-29.) Plaintiff testified that she was required to appear at a hearing concerning the matter and the decision to dock plaintiff's pay initially was upheld. (Pl. Dep. at 30-32.) Plaintiff testified that following an appeal of this determination, her pay was reinstated. (Id. at 32-33.) Plaintiff testified that "[n]o other employees were marked AWOL" and subject to a hearing. (Id. at 31.) The basis upon which plaintiff purports to have personal knowledge of other employees' attendance and disciplinary records is not apparent from plaintiff's testimony.
Plaintiff further asserts that the placement of a security camera in her work space was discriminatory. (Pl. Decl. ¶ 14.) Plaintiff states that the camera was positioned toward her to permit Leschke to "keep an eye" on her through a television monitor because she is a woman. (Id.; see also Pl. Dep. at 50.) Plaintiff testified that the monitor was removed from Leschke's office in 2000, allegedly after Leschke was observed by a "cleaning woman" to be masturbating in his office. (See Pl. Dep. at 45-46.) According to plaintiff, a security monitor was replaced in Leschke's office in or about 2004. (Id. at 51.) Plaintiff testified that the use of cameras throughout the Maspeth facility has steadily increased since 2004. (Id. at 51-52.)
Plaintiff also testified that she was treated differently in 2007 because she was not permitted to use a photocopier on the second floor of the Maspeth facility. (See Pl. Dep. at 76-77.) According to plaintiff, she was told that employees who do not work in the second floor office in which the photocopier was placed were not permitted to use the machine. (Id.) Plaintiff did not indicate whether other employees were similarly prohibited from using the photocopier.
Plaintiff filed a complaint of discrimination with DOT's EEO Office on March 5, 2001. (Def. 56.1 Stmt. ¶ 35.) In her complaint, plaintiff states that she was subjected to discriminated based on gender, as well as sexual harassment in the form of "lewd comments." (Chiu Decl., Ex. N, Complaint of Discrimination, at 1.) Plaintiff also indicated that she was subjected to discrimination based on her "height."*fn3 (Id.)
Plaintiff claims that Patrick Ambrogio, DOT's Deputy Director of Signs and Markings, retaliated against her on several occasions. (See Pl. Dep. at 160.) Specifically, plaintiff claims that Ambrogio retaliated against her by denying her review of the incident involving Jason Brennan's alleged attempt to "run over" plaintiff in a speeding truck. (See id.) Additionally, plaintiff claims that Ambrogio denied her a copy of her performance evaluation in May 2005. (Id.; see Def. 56.1 Stmt. ¶ 39.) Plaintiff received a copy of her 2005 performance evaluation after she requested it from a personnel coordinator. (Def. 56.1 Stmt. ¶ 39.) Indeed, plaintiff's 2005 performance evaluation indicates that it was received on May 2, 2005. (Chiu Decl., Ex. E.) Plaintiff also claims that she was retaliated against by Ambrogio in April 2006 when he provided to plaintiff an allegedly defective "zip disk and CD" which were required for plaintiff's work assignment. (Pl. Dep. at 160; Def. 56.1 Stmt. ...