The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiff Idella M. Abram, proceeding pro se, commenced this action on June 14, 2004. She then was a City of Buffalo (the City) police officer and alleges that the City and three supervisors discriminated against her and subjected her to harassment on the basis of her gender, religion, and race, in violation Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., discriminated against her on the basis of her age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 et seq., failed to provide a reasonable accommodation for her disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12112 et seq., and retaliated against her for complaining of discrimination or harassment.
On July 20, 2005, this Court dismissed Abram's claim that she was discriminated against because of a disability sometime in or after 1997 (the ADA claim), and dismissed all claims against the individual defendants. (Docket No. 16.) Presently, before this Court is the City's Motion for Summary Judgment on the claims that remain. Plaintiff opposes the motion. For the reasons discussed below, the City is entitled to summary judgment dismissing Plaintiff's complaint in its entirety.
On May 27, 2003, Abram filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging she was subjected to disparate treatment and a hostile work environment from September 30, 2002 through May 1, 2003, because of her race, gender, religion (Baptist), and age (then 47). (Docket No. 88-2 ¶¶ 4-5, Ex. 1.) In particular, she alleged that she: (1) was treated differently than similarly situated males when she received a 30-day suspension on or about September 30, 2002,
(2) was required "to fill [out] a P-73 form while similarly situated yo[u]nger Black females" were not, (3) usually received less favorable assignments from her non-Black supervisors than did younger females, and (4) was singled out and harassed because of her religious beliefs.
The EEOC issued Abram a determination letter and a Dismissal and Notice of Rights, both dated March 10, 2004, in which the agency stated it was unable to conclude from the information obtained during its investigation that any violations of the statutes had occurred. (Docket No. 1 at 6-8.)
Abram timely commenced this action, on June 14, 2004, by filing a pro se form discrimination complaint. (Docket No. 1.) Consistent with her EEOC charge, she checked boxes indicating she was discriminated against and harassed on the basis of her race, gender, religion, and age. In response to the requirement that she set forth the facts of her case, Abram stated only that "within a week or two" after having a conversation with another Police Department employee about that employee's extramarital affair, "I began to be bought [sic] up on many departmental charges by [three of my supervisors]." (Id. ¶
19.) Abram then proceeded to raise, for the first time, claims of failure to accommodate a disability under the ADA and retaliation for complaining of discrimination or harassment. In support of the ADA claim, Abram alleges she first disclosed her disability and sought accommodation on February 26, 1997, and that upon reinjury at some unspecified time, she was denied injured on duty (IOD) status and light duty. (Id. ¶ 23.) The Complaint does not identify any conduct alleged to have been retaliatory. The Complaint does not allege any discriminatory conduct other than the purported discriminatory departmental charges and failure to accommodate.
A few months after commencing this action, on September 23, 2004, Abram filed a second administrative complaint, this time with the New York State Division of Human Rights. She alleged that the City discriminated against her because of a disability in violation of the ADA and New York's Human Rights Law (HRL), and retaliated against her for filing an EEOC charge, when it denied her a light duty assignment and IOD status in November 2003. A hearing was held before a DHR Administrative Law Judge in the fall of 2007. On April 22, 2009, the DHR issued a Notice and Final Order rejecting Abram's claims of disability discrimination and retaliation under the ADA and HRL. (Docket No. 88-2, Ex. 7.) Abram filed a Verified Petition in New York State Supreme Court, Erie County, challenging the DHR's Final Order. The Order was unanimously confirmed on March 19, 2010. Abram v. New York State Div. of Human Rights, 71 A.D.3d 1471, 896 N.Y.S.2d 764 (4th Dep't 2010).
Just one day after Abram filed her second administrative complaint, on September 24, 2004, Defendants filed a Motion to Dismiss in this action. (Docket No. 4.) As previously noted, Defendants' motion was granted in part. Abram's ADA claim was dismissed for failure to state a claim, and all claims against the individual defendants were dismissed on the ground that there is no individual liability under Title VII or the ADEA.
On March 6, 2006, Abram filed a third administrative complaint against the City, again with the DHR. She claimed that after filing her 2004 DHR complaint, the City denied her claims for medical benefits, refused to grant her leave requests, threatened to discipline and terminate her if she did not report to work, refused to provide the NYS Retirement System with accurate information about her, and terminated her on March 24, 2005, while her retirement was being processed. (Docket No. 88-2, Ex. 8.) On May 17, 2007, the DHR issued a Determination and Order after Investigation which found no probable cause to believe that the City engaged in retaliation. (Id. Ex. 9.) The DHR expressly noted that all of the alleged retaliatory events occurred or commenced prior to Abram's filing of her earlier DHR complaint and thus could not have constituted retaliation.
While Abram's third administrative complaint was pending, on April 11, 2006, this Court granted her Motion for Appointment of Counsel. (Docket No. 27.) Her appointed attorney withdrew from the case on January 30, 2007, and Abram again proceeded pro se until she retained new counsel on May 30, 2008. She has been represented continuously since that time, including during her deposition and on the instant motion.
On July 13, 2009, the City moved for summary judgment on the grounds that Abram: (1) is precluded from basing her claims on conduct occurring before and after the time period specified in her EEOC charge, (2) is precluded from asserting claims based on conduct not alleged in the EEOC charge or the Complaint, (3) is unable to establish a prima facie case of discrimination with regard to much of the alleged conduct, (4) was suspended on September 30, 2002 for a legitimate, nondiscriminatory reason, and (5) does not allege conduct that rises to the level of a hostile work environment.
In response to the City's motion, Abram has withdrawn her religious discrimination claim. Accordingly, the claims that remain for consideration are discrimination and harassment on the basis of race, gender, and age, and retaliation.
B. The Alleged Discriminatory Conduct
Abram, an African-American female born September 8, 1955, began working as a City of Buffalo police officer in 1985. (Docket Nos. 1; 96 ¶ 1.) She was assigned to the E District sometime in 1997, and certain E District supervisors allegedly began discriminating against her in or about September 2000. (Docket No. 90 ¶ 1.)
Abram attests that, while she was on light duty and assigned to a desk job sometime in 2000, Jenyne Langhorne, a report technician who worked the 11:00 p.m. to 7:00 a.m. shift, began talking about an extramarital affair she was having with Inspector Andrews. Abram told Langhorne she did not want to hear about such conduct, which was adultery and a B misdemeanor offense. (Tr. 17:9-19:11.*fn1 ) According to Abram, within a week or two after this exchange with Langhorne, Inspector Andrews and two other E District supervisors began treating her unfavorably by "mounting . . . departmental charges against [her]," and subjecting her to a hostile work environment. (Tr. 20:9-22-33; Docket Nos. 1
¶ 19; 96.) In the course of discovery, Abram identified additional alleged incidents of race, gender, and/or age discrimination and harassment, beyond those identified in her EEOC charge and Complaint. Her specific allegations now include the following:
* September 16, 2000 Inspector Andrews notified Abram and another female officer who also was on light duty that he was changing their work schedules (Tr. 18:15-19:15; Docket Nos. 96 ¶ 2; 97-17)
* In or about 2000 -- 2003 Abram was the only officer in her platoon who was not permitted to attend certain mandatory training sessions (Tr. 53:6-59:8)
* In or about 2002 -- 2003 Abram was denied a "free-floating car," which was available on "double-up day" and should have been assigned based on seniority. (Tr. 10:20-11:9)
* In and after July 2002 When Abram reported late to work or an assignment, she was required to fill out a P-73 form, which she describes as an form of "interdepartmental correspondence used for explanations, complaints" (Tr. 73:13-17)
* September 2002 On one occasion, Lieutenant Zagara told Abram to "man up," and on another occasion, when she complained of pain, he told her that if she wanted a man's job, she should suck it up (Tr. 63:20-66:6)
* September 30, 2002 Abram was improperly required to work at school crossings, which should have been assigned to a more junior officer, and then was singled out for discipline when she arrived late to one such ...