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Guzman v. City of New York

September 30, 2010


The opinion of the court was delivered by: Kiyo A. Matsumoto United States District Judge



Plaintiff Ennette Guzman (―plaintiff‖) brings this action against the City of New York, the New York City Department of Correction (―DOC‖), and individual defendants employed by the DOC, alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (―Title VII‖), New York State Human Rights Law, N.Y. Exec. Law § 296 (―NYSHRL‖), and New York City Human Rights Law, N.Y.C. Administrative Code § 8-107 (―NYCHRL‖). (See ECF No. 30, Second Amended Complaint (―Second Am. Compl.‖) at 12-15.) Plaintiff alleges that she was discriminated against based on her gender and pregnancy, and that she was retaliated against for filing complaints of discrimination against various DOC employees. (See Second Am. Compl. at 2-3.) In support of her gender and pregnancy discrimination claims, plaintiff alleges that female correction officers are assigned less preferential tours, facilities, and posts, DOC failed to assign her to a steady tour when she became pregnant, Deputy Warden Feline Breeland (―Breeland‖) assigned her to a post inappropriate for pregnant women, DOC denied her requests for a transfer and steady posts, and Dr. Peter Theo (―Dr. Theo‖) and DOC failed to inform plaintiff about the appropriate procedures to remove a firearm restriction. (See Second Am. Compl. at 6-11; see also ECF No. 64, Memorandum in Opposition to Defendants' Motion for Summary Judgment (―Pl. Mem.‖) at 1-2.)*fn1

Defendants now move for summary judgment, pursuant to Federal Rule of Civil Procedure 56, seeking dismissal of plaintiff's action. For the reasons set forth herein, defendants' motion is granted in part and denied in part.*fn2


The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1 and the supporting evidence submitted therewith, 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.

A.Plaintiff's Employment History

Plaintiff Ennette Guzman has been employed by the DOC since 2002. (See ECF No. 68-3, Zinaman Declaration, Ex. B, Guzman Deposition Transcript (―Pl. Dep.‖) 19:21-20:7.) Starting in 2003, plaintiff has worked as a correction officer at the Robert N. Davoren Center (―RNDC‖)*fn3 on Rikers Island. (See Pl. Dep. 29:6-8.)

1. Transfer Requests

Plaintiff alleges that the RNDC jail, which houses men and adolescent inmates, is a dangerous facility for correction officers because, according to plaintiff, ―[a]dolescents are notoriously violent and disobedient inmates.‖ (See ECF No. 65, Guzman Affidavit in Opposition to Defendants' Motion for Summary Judgment (―Pl. Aff.‖) ¶ 38.) Plaintiff also alleges that, because of these dangerous conditions, RNDC is a ―non preferred facilit[y]‖ and is ―widely regarded as a difficult post.‖ (See Second Am. Compl. at 6-7.)

Plaintiff submitted a ―Request for Transfer‖ application in July of 2007,*fn4 requesting a transfer from RNDC on Rikers Island to other DOC facilities, including other detention centers in Manhattan and Brooklyn. (Pl. Aff., Ex. 10, Request for Transfer; see also Pl. Aff. ¶ 38.) Plaintiff indicated on the form that the reason for her transfer request was a ―closer commute.‖ (Pl. Aff., Ex. 10, Request for Transfer.) This request for transfer was denied. (See ECF No. 68-2, Defendants' Rule 56.1 Statement (―Def. 56.1 Stmt.‖) ¶ 97; Pl. Aff. ¶ 39.) Plaintiff's commanding officer indicated that the request was ―not recommended‖ because ―[a]ttendance should be better.‖ (Pl. Aff., Ex. 10, Request for Transfer; Def. 56.1 Stmt. ¶ 97.)

2. Post Assignments and Steady Post Requests

From 2003 until 2007, plaintiff's assigned post was primarily the B-Post Housing Area (―Housing Area Post‖) at RNDC. (See Def. 56.1 Stmt. ¶ 85; Pl. Dep. 29:11.) The Housing Area is where inmates live, and the officer assigned to this post supervises the inmates for the duration of his or her tour. (Def. 56.1 Stmt. ¶ 85.) The Housing Area Post is generally the post to which correction officers are first assigned after completing their training at the Academy. (See id.; Pl. Dep. 30:9-12.) Plaintiff describes that in the Housing Area Post she was ―locked in‖ with the 30 to 60*fn5 inmates she was responsible for supervising, attending to their needs, supervising showers and meals, and at times even dealing with inmates who committed suicide by hanging themselves from the cell bars. (See Pl. Aff. ¶ 40; Pl. Dep. 33:4-12.) For these reasons, plaintiff alleges that the ―risk of violence and injury was the highest‖ for correction officers working the Housing Area Post. (See Pl. Aff. ¶ 41.)

Plaintiff alleges she applied for six different steady posts in 2007: Mental Health Officer, Clinic, Bus Escort, North South Corridor, Corridor 3 & 5, and Corridor Relief. (See Pl. Aff. ¶ 40; see also Pl. Dep. 30:17-22.) Plaintiff considered the Mental Health Officer, Clinic and Bus Escort Posts as ―preferred posts‖ because they involved little to no inmate contact or supervision, ―sometimes as little as one or two inmates at a time,‖ and thus presented less risk of violence or injury. (See Pl. Aff. ¶ 41; see also Pl. Dep. 32:14-15, 33:21-24, 34:5-18.) Plaintiff did not consider the corridor posts as ―preferred‖ because they still required some inmate contact and supervision. (See Pl. Dep. 32:10-12; see also Pl. Aff. ¶¶ 40-41.) Nonetheless, plaintiff considered the corridor posts to be ―much better duty‖ than the Housing Area Post because the inmate contact and supervision was limited to securing corridors as inmates were being escorted by other officers, rather than being ―locked in with [the inmates]‖ during the entirety of her tour. (See Pl. Aff. ¶ 40; Pl. Dep. 33:4-17.) Defendants claim that plaintiff applied only for four steady posts, the Mental Health Officer,*fn6 two Corridor Relief, and Meal Relief Posts.*fn7 (Def. 56.1 Stmt. ¶ 87.)

The Mental Health Officer Post was awarded in June 26, 2007 to Officer Hardayal, an officer with over ten years of seniority over plaintiff. (See Pl. Aff., Ex. 11, Steady Post Awards; Zinaman Declaration, Ex. O, Steady Post Awards.) Plaintiff alleges that the Clinic and Bus Escort Posts were never awarded to any particular officer. (See Pl. Aff. ¶ 42 n.3; Pl. Dep. 34:19-21.) Plaintiff also alleges, without specifying a date, that the North South Corridor Post was awarded to Officer Gomez, a male officer with less seniority than plaintiff. (See Pl. Aff. ¶¶ 42 n.3, 43.) Three Corridor Relief Posts were awarded on October 9, 2007, one of which was awarded to plaintiff. (See Pl. Aff., Ex. 11, Steady Post Awards.) Finally, plaintiff presents evidence showing that, on that same day, the Corridor 3 & 5 Post was awarded to Officer Raboy, an officer with over ten years of seniority over plaintiff. (See Pl. Aff., Ex. 11, Steady Post Awards.)

B. The Circumstances of the July 2005 Events

Plaintiff had a miscarriage in February of 2005. (See Def. 56.1 Stmt. ¶ 7; Pl. Aff. ¶ 3; Pl. Dep. 62:20-63:2.) A few months later, in April of 2005, plaintiff learned that she was pregnant again. (See Def. 56.1 Stmt. ¶ 8; Pl. Aff. ¶ 3.) Based on her doctor's recommendation, plaintiff was out on sick leave during the first months of her April 2005 pregnancy. (See Def. 56.1 Stmt. ¶ 11; Pl. Aff. ¶ 3; Pl. Aff., Ex. 1, Treating Physician Summary Report.) During this time, plaintiff made regular visits to the Health Management Division (―HMD‖) for routine evaluations. (See Pl. Aff. ¶ 3; see also Pl. Aff., Ex. 2, Patient's Progress Notes.) Plaintiff was cleared to return to light duty on ―MMR III‖ status on June 28, 2005, when she was approximately five months pregnant. (See Pl. Aff. ¶ 6; Pl. Aff., Ex. 2, Patient's Progress Notes, HMD 00189.) The MMR III designation means that the officer is to have no inmate contact or supervision. (Def. 56.1 Stmt. ¶ 12.) Pursuant to DOC policy, all pregnant officers are designated MMR III status. (Id.) Further, plaintiff states that it is DOC policy to automatically assign pregnant officers to steady tours, but such policy, if it exists, is not in the record before this court. (See Pl. Aff. ¶ 7.) A steady tour means the officer works the same hours every day, as opposed to being ―on the wheel‖ and assigned to shifts randomly. (See id. at ¶ 6.)

Plaintiff returned to work at RNDC on MMR III status on July 2, 2005 and was assigned to work the 7-3 tour. (See Def. 56.1 Stmt. ¶ 13; Pl. Aff. ¶ 6; Pl. Dep. 48:15-16.) Despite the alleged DOC policy regarding steady tours for pregnant officers, plaintiff was ―on the wheel‖ at this time, meaning she had not been automatically assigned a steady tour. (See Pl. Aff. ¶ 6; see also Pl. Dep. 48:14-18.) As a result, on July 7, 2005, plaintiff was reassigned from the 7-3 tour to the midnight tour, for which she would report in at 11:00 p.m. on July 7 and work until 7:30 a.m. on July 8. (See Def. 56.1 Stmt. ¶ 24; Pl. Aff. ¶ 8; Pl. Dep. 48:10-18.) Upon learning her assigned tour on July 7, 2005, plaintiff contacted the personnel office that day to remedy the failure to assign her a steady tour. (See Pl. Aff. ¶ 8; Pl. Dep. 48:14-16, 49:4-13.) The personnel office informed plaintiff that only HMD could approve a steady tour assignment. (See Pl. Aff. ¶ 8; Pl. Dep. 49:4-15.) Plaintiff then attempted to contact Nurse Rhaney, the HMD nurse in charge of pregnant correction officers, to request a steady tour. (See Def. 56.1 Stmt. ¶ 26; Pl. Aff. ¶ 9; Pl. Dep. 49:1-4.) However, plaintiff was unable to reach Nurse Rhaney before she was required to report to the midnight tour at RNDC. (See Def. 56.1 Stmt. ¶ 27; Pl. Aff. ¶ 9; see also Pl. Dep. 49:9-10.)

Plaintiff reported to her assigned midnight tour on July 7, 2005. (See Def. 56.1 Stmt. ¶ 28; Pl. Aff. ¶9; Pl. Dep. 50:19-20, 51:3-9.) Prior to the commencement of the tour, plaintiff alleges that defendant Breeland, the tour commander that night, saw her with another officer as Breeland walked past the post where plaintiff was sitting. (See Pl. Dep. 52:15-16, 54:6-55:18.) Plaintiff states she was five months pregnant, ―definitely showing,‖ and wearing maternity clothes that night. (See Pl. Aff. ¶ 10; Pl. Dep. 50:20-23, 53:12-16.) After roll call, Captain Rivera, the Central Control Room captain, assigned plaintiff to work in the General Office, a post with no inmate contact or supervision, in compliance with the MMR III status requirements. (Def. 56.1 Stmt. ¶ 29; Pl. Aff. ¶ 10; Pl. Dep. 51:21-24.) According to plaintiff, the General Office is an air-conditioned room with an adjacent bathroom. (See Pl. Aff. ¶ 10; Pl. Dep. 53:3-5.) Later that night, Captain Rivera informed plaintiff that Breeland, the tour commander, had requested that plaintiff be reassigned to Control II so that the Control II officer could relieve another officer on overtime at an inmate contact post. (See Def. 56.1 Stmt. ¶¶ 30, 33, 35; Pl. Aff. ¶ 11; Pl. Dep. 52:15-21.) Plaintiff alleges Breeland asked Captain Rivera for the ―pregnant officer‖ to be sent to Control II. (See Pl. Aff. ¶ 11; Pl. Dep. 52:16-17.)

Plaintiff described Control II as a plexiglass enclosure at the intersection of several gates, without air-conditioning, and no adjacent bathroom. (Pl. Aff. ¶ 12; Pl. Dep. 52:25-53:4, 54:17-21, 56:4-11.) An officer assigned to Control II must request the Central Control Room to send a relief officer before leaving the post to go to the bathroom which, according to plaintiff, is several minutes away. (Pl. Aff. ¶ 12; Pl. Dep. 56:4-9.) There is no inmate contact or supervision at Control II, and therefore Control II is designated an MMR III post. (Def. 56.1 Stmt. ¶¶ 37, 38; Pl. Aff. ¶¶ 12, 18; Pl. Dep. 74:15-17.) Nonetheless, plaintiff asserts that Control II is not assigned to pregnant officers, despite the assignments' MMR III designation, due to the lack of air-conditioning and bathroom access. (See Pl. Aff. ¶ 12; Pl. Dep. 55:25-56:2.)

Plaintiff protested her reassignment to Control II to Captain Rivera, who purportedly agreed with plaintiff that Control II was not an appropriate post assignment for a pregnant officer. (See Pl. Aff. ¶ 13; Pl. Dep. 57:12-24.) Plaintiff stated that Captain Rivera said he would speak with Breeland to explain to her why assigning plaintiff to Control II was not appropriate. (See id.) However, according to plaintiff, Captain Rivera subsequently called plaintiff and explained that Breeland was insisting that plaintiff go to Control II even though she was pregnant. (See id.; see also Pl. Dep. 58:17-19.)

Plaintiff alleges that the reassignment to Control II caused her to become ―stressed out.‖ (See Def. 56.1 Stmt. ¶ 45; Pl. Aff. ¶ 14; Pl. Dep. 58:24-25.) Plaintiff also alleges she began feeling cramps and stinging pains in her back. (See Def. 56.1 Stmt. ¶ 44; Pl. Aff. ¶ 15; Pl. Dep. 58:20-22.) Instead of assuming the Control II post, plaintiff called in sick and went home. (See Def. 56.1 Stmt. ¶ 46; Pl. Aff. ¶ 15; Pl. Dep. 61:2-7.) Later that day, plaintiff states she was taken to the emergency room, where she had her second miscarriage. (See Pl. Aff. ¶ 15; Pl. Dep. 61:25-62:13.)

C. Firearm Restriction

Following the second miscarriage in July of 2005, plaintiff became depressed and anxious. (See Pl. Aff. ¶ 24; see also Def. 56.1 Stmt. ¶ 68.) Plaintiff began seeing Dr. Theo, the HMD psychologist, due to her depression and anxiety. (See Def. 56.1 Stmt. ¶ 69; Pl. Dep. 83:12-13.) Plaintiff alleges that during one these visits to HMD, Dr. Theo declared her ―psychologically unfit‖ and changed her ID to a ―no firearm‖ designation. (See Pl. Aff. ¶ 23; Pl. Dep. 83:19-21, 84:23-85:2.) The parties disagree about when the ―no firearm‖ designation was made. Plaintiff alleges in her affidavit that Dr. Theo changed her ID to ―no firearm‖ in September 2005. (See Pl. Aff. ¶ 23; Plaintiff's Response to Defendants' Local Rule 56.1 Statement of Undisputed Facts (―Pl. 56.1 Stmt.‖) ¶ 74.) During her deposition, however, plaintiff testified that Dr. Theo changed her ID to ―no firearm‖ during their last visit (see Pl. Dep. 83:19-23), which HMD records indicate was in late March 2006 (see Pl. Aff., Ex. 2, Patient's Progress Notes, HMD 00184.) Finally, defendants seem to allege that the ―no firearm‖ designation was made in April of 2006. (See Def. 56.1 Stmt. ¶ 74.) Plaintiff presented the HMD Patient's Progress Notes containing Dr. Theo's entries for each of plaintiff's visits as evidence of the date when the ―no firearm‖ designation was made. (See Pl. Aff., Ex. 2, Patient's Progress Notes.) The court has been unable to determine from the record evidence the date of the ―no firearm‖ designation, or any other information regarding this matter. However, the parties do not dispute that a ―no firearm‖ designation was made at some time during the relevant period.

Plaintiff became pregnant again in November of 2005, but had a third miscarriage in January of 2006. (Def. 56.1 Stmt. ¶ 9; Pl. Dep. 63:16-18.) HMD records show that plaintiff continued to complain of depression and anxiety from July 2005, after her second miscarriage, until March 2006. (Def. 56.1 Stmt. ¶ 68; Zinaman Declaraion, Exs. L, N, Treating Physician's Summary Reports.) As a result of her pregnancies and miscarriages, and the psychological and physical sequelae, plaintiff was either out sick or on light duty until May of 2006. (See Def. 56.1 Stmt. ¶¶ 70-73; Zinaman Declaration, Exs. L, N, Treating Physician's Summary Reports.) Plaintiff continued to see Dr. Theo for her depression and anxiety, and the HMD records show that Dr. Theo cleared plaintiff for full duty, pending medical clearance, on February 15, 2006. (See Pl. Aff., Ex. 2, Patient's Progress Notes, HMD 00199; Pl. Aff. ¶ 29.) Plaintiff alleges in her affidavit that during this visit on February 15, 2006, she asked Dr. Theo how to remove the ―no firearm‖ designation from her ID, and that Dr. Theo ―seemed not to know and suggested that [plaintiff] talk to someone out front at HMD.‖ (Pl. Aff. ¶ 29.)

Plaintiff returned to full duty in May of 2006. (See Def. 56.1 Stmt. ¶¶ 58, 73.) Plaintiff asserts that during May 2006, she attended a firearms training, an annual requirement for correction officers, but was turned away because of the ―no firearm‖ designation on her ID. (See Pl. Aff. ¶ 30.) Plaintiff states that when she informed the personnel office at RNDC that she was unable to complete the firearms training as requested, the administrative captain ―wrote [her] up‖ for not informing the office about the firearm restriction, but failed to inform plaintiff what was needed to change her ID. (Id.) After this incident, plaintiff states that she wrote a letter to the warden at RNDC requesting that the ―no firearm‖ restriction be lifted, but did not receive any information in response. (See Pl. Aff. ¶¶ 31-32.) A copy of plaintiff's letter is not provided. Plaintiff concedes, both in her affidavit and during her deposition, that she did eventually learn from other sources that she was required to present a psychological evaluation from an outside doctor in order to lift the ―no firearm‖ restriction on her ID. (See Pl. Aff. ¶¶ 28, 32; Pl. Dep. 101:18-23.)

D. Complaints of Discrimination

Plaintiff filed a complaint of discrimination against Breeland with the DOC Office of Equal Employment Opportunity (―DOC's EEO Office‖) on October 4, 2005. (See Def. 56.1 Stmt. ¶ 50; Pl. Aff. ¶ 44.) The complaint, signed by plaintiff and dated October 4, 2005, alleged that Breeland discriminated against plaintiff in reassigning her to Control II on July 8, 2005. (See Pl. Aff., Ex. 12, Complaint of Discrimination; see also Def. 56.1 Stmt. ¶ 50.) Plaintiff followed up with DOC'S EEO Office to inquire about the status of her complaint, but the office informed her that they had no record of her complaint against Breeland. (See Pl. Dep. 109:20-21, 110:5-11.) Plaintiff then faxed DOC'S EEO Office another copy. (See id. at 110:9-10.) DOC listed the complaint as filed on January 17, 2006 and assigned an EEO investigator on January 25, 2006. (See Def. 56.1 Stmt. ¶¶ 52, 53; Pl. Aff., Ex. 12, Complaint of Discrimination, IEEO 000140.) After an investigation, on March 28, 2006 the DOC'S EEO Office found plaintiff's allegations against Breeland to have been ―unsubstantiated.‖ (See Def. 56.1 Stmt. ¶ 54; Pl. Aff., Ex. 12, Complaint of Discrimination, IEEO 000140; Pl. Aff. ¶ 47.)

Plaintiff filed a complaint against Dr. Lisa Rosenberg, an OB/GYN doctor at HMD, with the DOC'S EEO Office on October 12, 2005. (See Def. 56.1 Stmt. ¶ 51; Pl. Aff. ¶ 44; Pl. Aff., Ex. 5, Complaint of Discrimination (Addendum); Zinaman Declaration, Ex. G, Complaint of Discrimination (stamped October 10 and stamped received October 12, 2005).) The complaint claims that Dr. Rosenberg discriminated against plaintiff by failing to adhere to DOC policies regarding pregnant women and based on statements made by Dr. Rosenberg to plaintiff shortly after her July 2005 miscarriage. (See id.) Plaintiff alleges that she never received any information or notification regarding a determination of her case against Dr. Rosenberg. (See Pl. Aff. ¶ 45.) Defendants sent a letter to plaintiff, dated March 21, 2007, advising that the DOC'S EEO OFFICE investigation in that case had been suspended due to plaintiff's filing of an external complaint with the U.S. Equal Employment Opportunity Commission. (See Zinaman Declaration, Ex. J, Letter of Determination-Correction Officer Ennette Guzman v. Dr. Lisa Rosenberg CASE NO. 20050142; Def. 56.1 Stmt. ¶ 55.)


Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (―EEOC‖) on or about March 21, 2006,*fn8 charging discrimination on the basis of disability. (See Def. 56.1 Stmt. ¶ 103; Zinaman Declaration, Ex. U, Charge of Discrimination, EEOC 000008.) Plaintiff alleges DOC was notified of her EEOC complaint on May 10, 2006. (See Pl. Aff. ¶ 54; Pl. Aff., Ex. 17, EEOC 000023, Notice of Charge of Discrimination.) The EEOC issued a ―Dismissal and Notice of Rights‖ on August 25, 2006, stating that EEOC was closing its file on plaintiff's charges because her allegations did not involve a disability under the Americans with Disabilities Act, and notifying plaintiff of her right to bring suit within 90 days of that notice. (See Def. 56.1 Stmt. ¶ 103; Zinaman Declaration, Ex. U, Dismissal and Notice of Rights, EEOC 000004.)

After receiving the notice of her right to sue, on October 23, 2006, plaintiff, appearing pro se, began this civil action in federal court by filing a complaint alleging employment discrimination based on disability, in violation of the Americans with Disabilities Act of 1990. (See ECF No. 1, Complaint; Def. 56.1 Stmt. ¶ 105.) Plaintiff subsequently retained counsel, the Egan Law Firm. (See ECF No. 6, Notice of Appearance.) Plaintiff then filed an amended complaint on January 31, 2007, alleging employment discrimination in violation of Title VII and state law. (See ECF No. 9, Amended Complaint; Def. 56.1 Stmt. ¶ 106.)

Because plaintiff had raised only a disability claim in her original complaint with the EEOC, plaintiff amended her EEOC complaint on August 22, 2007 to add sex and pregnancy discrimination, as well as retaliation claims. (See Def. 56.1 Stmt. ¶ 104; Zinaman Declaration, Ex. V, Amendment to Charge No.: 520-2006-00598.) The EEOC issued a ―Notice of Right to Sue Within 90 Days‖ on February 21, 2008. (Id.) Plaintiff then served a second amended complaint on defendants on April 3, 2008 (see ECF No. 31, Affidavit of Service for Second Amended Complaint.), which was filed with the court on September 9, 2008. (See Second Am. Compl.; Def. 56.1 Stmt. ¶ 107.)


A. Summary Judgment Standard

The court may grant summary judgment only ―if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.‖ Fed. R. Civ. P. 56(c)(2). ―[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.‖ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). ―A fact is ‗material' for these purposes when it might affect the outcome of the suit under the governing law.‖ Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citation and internal quotation marks omitted). ―An issue of fact is ‗genuine' if the evidence is such that a reasonable jury could return a verdict for the ...

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