The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Represented by counsel, plaintiff Pamela Piccone ("Piccone" or "Plaintiff") commenced this action in the Western District of New York on or about May 21, 2009. Piccone alleges discrimination by her former employer, defendant Town of Webster ("the Town"), along with Webster Town Supervisor Ronald Nesbitt ("Nesbitt") and Highway Department Superintendent Barry Deane ("Deane"), her immediate supervisor. In particular, Plaintiff alleges discrimination in the context of three alleged adverse employment actions: the denial of "step" salary increases prior to her receiving a permanent, part-time position in January 2006; the failure to convert her part-time position to a full-time position; and her termination in January 2008. Plaintiff also alleges discrimination and harassment based on her gender, age, national origin, and ethnicity in violation of the Constitution's Equal Protection Clause and the New York State Human Rights Law. She does not allege claims under either Title VII of the Civil Rights Act of 1964 ("Title VII") or the Age Discrimination in Employment Act ("ADEA").
Presently pending before the Court is the Town's motion for summary judgment (Dkt #55) dismissing the complaint. Also pending are Defendants' motion to strike (Dkt #70) the Declaration of Kathleen Roeszies dated October 5, 2010; and Plaintiff's cross motion to strike (Dkt #73) the Declaration of Kathy Tanea dated October 22, 2010. For the reasons that follow, the Town's motion for summary judgment is granted. Plaintiff's motion to strike is denied. Defendants' motion to strike likewise is denied.
On May 3, 1995, Plaintiff was appointed as an "on-call or substitute" part-time clerk for the Town of Webster. Declaration of Ronald Nesbitt dated September 3, 2010 ("9/3/10 Nesbitt Decl."), ¶3 (Dkt #56). From 1995 to 2006, Plaintiff worked on and off as a temporary part-time secretary in the Town's Highway Department. Her position was neither permanent nor regular. Declaration of Barry Deane dated September 3, 2010 ("9/3/10 Deane Decl."), ¶3 (Dkt #57). Rather, the Highway Department would contact her when extra help was needed or to fill in for permanent employees who might be out on vacation or for other reasons. Id. (Dkt #57). On occasion, Plaintiff might have worked several months full time to fill in for an employee who was on medical leave, while at other times, she would not have been called for many months at a time because there was no need for her services. Id. (Dkt #57). During this time period, Plaintiff also occasionally filled in on a similar basis for absent clerical staff members at other Town offices, including that of then-Town Supervisor Cathryn Thomas. Id. (Dkt #57).
Plaintiff's duties included answering telephone calls, maintaining files and entering data into the tracking system used for drainage jobs, and assisting with paperwork (e.g, environmental compliance reports). 9/3/10 Deane Decl., ¶4 (Dkt #57).
The Webster Town Board created the Plaintiff's permanent, part-time position on Deane's recommendation in January 2006. Id., ¶5 (Dkt #57). In 2003, housing starts within the Town reached a high of 356 and remained well above 200 per year for both 2004 and 2005. 9/3/10 Nesbitt Decl., ¶¶ 6-7 (Dkt #56). Prior to that time, no secretary or other clerical staff had been assigned exclusively to support drainage operations. 9/3/10 Deane Decl., ¶5 (Dkt #57). Instead, the Drainage Foreman was responsible for fielding his own phone calls and completing paperwork associated with drainage operations. Id., ¶5 (Dkt #57). Deane concluded, however, that creating a permanent position for Piccone was justified given the large volume of new housing starts and other development that the Town was experiencing at the time, which was generating substantial drainage-related work. Id., ¶5 (Dkt #57). The creation of Plaintiff's permanent part-time position was intended to free the Drainage Foreman from performing clerical tasks so that he would have more time to devote to other aspects of his work. Id., ¶5 (Dkt #57).
After being instated in her permanent part-time position, Plaintiff approached Deane to request a raise from $11.72 to $16.50 per hour. 9/3/10 Deane Decl., ¶7 (Dkt #57). Deane broached the matter with the Town Supervisor, Nesbitt, and other Town Board Members on her behalf. Id. (Dkt #57). The Town subsequently approved raising her salary 28% to $15 per hour, which was in line with the pay of other permanent part-time employees in comparable positions. Id. (Dkt #57).
At the time the Town created Plaintiff's permanent, part-time drainage position, Deane anticipated that the Town would authorize converting the position to full-time within the next year. 9/3/10 Deane Decl., ¶9 (Dkt #57). Deane believed that the Drainage Foreman would require additional clerical assistance given the substantial increase in his responsibilities attributable to the new construction that the Town had experienced in recent years. Id. (Dkt #57). Deane, however, lacked the authority to create the full-time position discussed above. Only the Town Board was authorized to create an employment position and designate funding for it. 9/3/10 Nesbitt Decl., ¶7 (Dkt #56). Plaintiff admits that Nesbitt advised her that Deane did not have the power to create the full-time drainage position. 9/3/10 Feinstein Decl., ¶13 & Ex. I (Excerpt from Plaintiff's Deposition) (Dkt #58).
In early 2007, Deane approached Nesbitt and other Town Board Members for funding to convert Plaintiff's part-time position to full-time. 9/3/10 Deane Decl., ¶9 (Dkt #57). However, Deane was advised that it would be impossible to justify converting the part-time drainage position to full-time, given the marked downturn in construction activity. Id. (Dkt #57).
During the first week of July 2007, Deane and other Town department heads attended a meeting with Nesbitt, who advised them of the need to reduce the Town's payroll. 9/3/10 Deane Decl., ¶10 (Dkt #57). Nesbitt cited the substantial decline in new construction within the Town as the reason for the need for a reduction-in-force. Id. (Dkt #57). During 2006, total housing starts fell to 159. 9/3/10 Nesbitt Decl., ¶¶ 6-7 (Dkt #56).
Deane indicates that Nesbitt repeated this directive on numerous occasions over the next few months as the end of the fiscal and calendar years approached. 9/3/10 Deane Decl., ¶10 (Dkt #57); see also Declaration of Barry Deane dated October 22, 2010 ("10/22/10 Deane Decl."), ¶12 (Dkt #67) ("[T]he Town Supervisor was putting pressure on me and other Department heads to decrease our staff and the plaintiff's part-time position was the most logical position to eliminate as it had only been recently created in response to the construction boom, which was now over."). Thus, the full-time drainage position sought by Plaintiff never was created, as Plaintiff admitted during her deposition. Declaration of Joshua Feinstein, Esq. dated September 3, 2010 ("9/3/10 Feinstein Decl."), ¶11 & Ex. G (Excerpt from Plaintiff's Deposition) (Dkt #58). Plaintiff continued to work in her part-time permanent position.
According to Deane, on December 24, 2007, Plaintiff engaged in a public shouting match with Kathleen Roeszies ("Roeszies"), a secretary, who has since retired from her full-time, unionized secretarial position. The altercation occurred at the Highway Department and was overheard by Deane, as well as other employees and visitors. 9/3/10 Deane Decl., ¶11 (Dkt #57). Plaintiff disputes Deane's characterization of the incident, and states that she did not raise her voice.
A few days later, Deane recommended the elimination of Plaintiff's position.*fn2 According to Deane, there were several reasons for this decision. Given the decline in local construction, the circumstances that had originally justified the position no longer existed. 9/3/10 Deane Decl., ¶12 (Dkt #57); see also 10/22/10 Deane Decl., ¶4 (Dkt #67). In addition, some of Plaintiff's responsibilities had been eliminated by the Highway Department's implementation of an electronic database for tracking drainage related work, making it easier for the Drainage Foreman to perform the functions that had been assigned to Plaintiff's position. 9/3/10 Deane Decl., ¶12 (Dkt #57).
Finally, Plaintiff's altercation with Roeszies was a factor in Deane's decision to terminate her. Id. (Dkt #57); see also 10/22/10 Deane Decl., ¶¶ 3-4 (Dkt #67). Deane explained that in his opinion, Roeszies was one of the few remaining employees with whom Plaintiff had a good relationship. Their argument led Deane to conclude that Plaintiff had antagonized several of her co-workers to a point where her removal would be beneficial to maintaining a positive work environment. 9/3/10 Deane Decl., ¶12 (Dkt #57); see also 10/22/10 Deane Decl., ¶¶ 3-4 (Dkt #67).
Plaintiff was terminated on January 2, 2008. The Town's Highway Department never replaced Plaintiff. Instead, the Drainage Foreman reabsorbed some functions associated with Plaintiff's position while the Highway Department's receptionist took over others (in addition to her existing duties). 9/3/10 Deane Decl., ¶13 (Dkt #57).
Deane avers that neither Plaintiff's age, nor any other improper factor such as her gender or ethnicity, ever influenced any of his actions with respect to her. 9/3/10 Deane Decl., ¶15 (Dkt #57). Deane states that he only reluctantly concluded that her termination was necessary, and points to a number of actions he took in order to advance Plaintiff's career. For instance, when the permanent part-time drainage position was created, he hired her to fill it. He also lobbied on her behalf to obtain a substantial pay raise; encouraged her repeatedly to take Civil Service examinations so that she could qualify for full-time employment; and attempted to persuade the Town Board to convert her position to full-time. Id. (Dkt #57).
III. Procedural History of the Instant Litigation
After Plaintiff pursued her administrative remedies through the Equal Employment Opportunity Commission ("EEOC"), she filed the a complaint in this Court. Plaintiff's first cause of action alleges a hostile work environment, harassment, and age discrimination in violation of the Equal Protection Clause of the United States Constitution, as well as the First, Fourth, and Fourteenth Amendments to the Constitution. The second cause of action states that Plaintiff was subjected to sexual harassment and a hostile work environment in violation of the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq. As her third cause of action, Plaintiff alleges age discrimination in violation of the NYHRL. Finally, Plaintiff's fourth cause of action alleges that the Town promulgated policies and procedures by which the individual defendants Nesbitt and Deane intentionally and maliciously deprived Plaintiff of her civil rights.
In its answer, the Town asserts numerous defenses to Plaintiff's claims, including that a number of the alleged unlawful acts fall outside the applicable statute of limitations. The Town states that any employment action taken towards Plaintiff was taken for legitimate non-discriminatory and non-retaliatory business reasons. The Town asserts that it does not condone or approve of unlawful discrimination, harassment, or retaliation, and did not ratify any acts of unlawful discrimination, harassment, or retaliation. The Town states that Plaintiff unreasonably failed to take advantage of the Town's complaint procedure, such that no notice was given by Plaintiff of the alleged harassment or discrimination so as to enable the Town to commence an investigation and address her complaints. According to the Town, the individual defendants' actions were privileged, discretionary determinations, and made within the scope of their duties such that those defendants (Nesbitt and Deane) are absolutely and otherwise immune from suit and liability.
Extensive discovery in this matter ensued and was ably presided over by Magistrate Judge Payson. Presently pending before the Court is Defendants' motion for summary judgment dismissing the complaint (Dkt #55). Also pending are cross-motions to strike certain witnesses' declarations: Plaintiff has moved to dismiss the declaration of Kathy Tanea, the director of finance, offered to refute Plaintiff's allegation that she was entitled to "step" pay increases. (Dkt #73). Defendant has opposed that motion and has moved to strike the declaration of Kathleen Roeszies, the co-worker with whom Deane observed Plaintiff have a loud verbal confrontation. (Dkt #70). Plaintiff has opposed Defendant's motion for summary judgment and motion to strike the Roeszies Declaration.
For the reasons that follow, Plaintiff's motion to strike the Tanea Declaration is denied. Defendants' motion to strike the Roeszies Declaration is denied. Defendants' motion for summary judgment is granted in its entirety.
III. The Motions to Strike
A. Applicable Legal Standard
Under Rule 37(c)(1) of the Federal Rules of Civil Procedure, a party who fails to identify a witness under Fed. R. Civ. P. 26(a) or (e) is precluded from relying on that witness's testimony "unless the failure [to identify] was substantially justified or harmless." Fed. R. Civ. P. 37(c)(1). Rule 37(c) is designed to prevent the "sandbagging" of an opposing party with new evidence. See CSC Holdings, Inc. v. Berube, No. 01 Civ. 1650(DRH), 2004 WL 3541331, at *3 (E.D.N.Y. July 7, 2004) (Rule 37(c)(1) is "designed to avoid . . . gamesmanship . . . [and] . . . 'to provide a strong inducement for disclosure of Rule 26(a) material.'") (quoting Hein v. Cuprum, S.A., de C.V., 53 Fed. Appx. 134, 136 (2d Cir. 2002)).
"However, '"the severity of this exclusion is softened by the proviso that the penalty should not apply if the offending party's failure to disclose was "substantially justified."'" Berube, 2004 WL 3541331, at *3 (quoting Hinton v. Patnaude, 162 F.R.D. 435, 439 (N.D.N.Y. 1995)). Even if "the failure was not substantially justified the exclusion should not apply if the failure was 'harmless.'" Id. (quoting Hinton, 162 F.R.D. at 439).
In considering whether preclusion is required, courts consider four factors: 1) the importance of the testimony; 2) the reason for the party's failure to disclose the witness earlier; 3) the prejudice to the opposing party; and 4) the possibility of a continuance. Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006) (citing Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006)). Rule 37(c)(1) by its terms does not require a showing of bad faith, and the Second Circuit has expressly held that such a requirement should not be read into the Rule. Id.
B. Application to the Parties' Motions to Strike
1. Defendants' Motion to Strike the Roeszies Declaration
Defendants have moved to strike the declaration of Kathleen Roeszies dated October 5, 2010 (Dkt #63-11) ("the Roeszies Decl."), because Plaintiff failed to disclose Roeszies as a witness until submitting her declaration in opposition to the Town's summary judgment motion, months after discovery closed.
Plaintiff has not attempted to provide an excuse for waiting until after the Town moved for summary judgment to disclose Roeszies. Plaintiff likewise does not dispute that she has known that Roeszies was likely to have discoverable information that she might use in support of her claims. Plaintiff has been on notice since at least the Equal Employment Opportunity Commissions conciliation process, which occurred prior to Plaintiff's filing this lawsuit, the shouting incident with Roeszies was a factor in her termination. Plaintiff argues that it is the Town's responsibility to have anticipated Roeszies' testimony concerning an issue that the Town did not suspect that Plaintiff was attempting to contest, i.e., whether both Roeszies and Plaintiff were equally at fault for the shouting incident that Deane considered as one of the factors warranting her termination.
Ultimately, however, the Court has determined to deny the motion to strike as Roeszies' testimony does not change its analysis with regard to the outcome of Defendants' summary judgment motion. See CSC Holdings, Inc., 2004 WL 3541331, at *3 ("As the Court finds nothing in Mrs. Berube's testimony to contradict or alter the essential facts of the case, her affidavit sheds no new light. She corroborates the purchase, receipt, and use, however satisfying, of the decoding equipment. . . .[S]uch evidence does not create a genuine issue of material fact as to the claims in the complaint. For this reason, even when considering Mrs. Berube's affidavit, Plaintiff's summary judgment motion still must be granted. . . . Therefore the Court finds no harm in admitting the affidavit. On that basis, keeping in mind Defendant's pro se status, the motion to strike is denied.").
2. Plaintiff's Motion to Strike the Tanea Declaration
Plaintiff argues that Defendants failed to timely disclose witness Kathy Tanea, noting that the first time Defendants referred to Tanea was in their reply memorandum of law to Plaintiff's opposition to the summary judgment motion. Plaintiff asserts that Defendants were on notice of Plaintiff's testimony, since May 26, 2010, regarding Jan Clemens' communication to her that she was entitled to biennial "step" pay increases.
As with the Roeszies Declaration, the Court has determined to deny the motion to strike the Tanea Declaration. Tanea's testimony does not change its analysis with regard to the outcome of Defendants' summary judgment motion because the claims as to which Tanea's testimony is relevant are outside the relevant statute of limitations, as discussed more fully, infra.
IV. Summary Judgment Standard
Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56. Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is warranted when the non-movant has no evidentiary support for an essential element on which it bears the burden of proof. Celotex, 477 U.S. at 322--23; see also Silver v. City Univ. of N.Y., 947 F.2d 1021, 1022 (2d Cir. 1991). The "mere existence of a scintilla of evidence" supporting the non-moving party's cause is insufficient. Anderson, 477 U.S. at 252. Nor may summary judgment be defeated merely on the basis of a "metaphysical doubt" or "conjecture or surmise." Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party may not rely on evidence that is merely colorable, conclusory, or speculative but must come forward with "concrete evidence from which a reasonable jury could return a verdict in [his or her] favor." Anderson, 477 U.S. at 256.
Courts must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citations and internal quotations omitted). However, a plaintiff may not defeat a motion for summary judgment merely by relying upon "purely conclusory allegations of discrimination, absent any concrete particulars." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. denied, 474 U.S. 829 (1986).
The party opposing summary judgment may not create a triable issue of fact "merely by submitting an affidavit that disputes his own prior sworn testimony." Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (citations omitted). Rather, such affidavits are to be disregarded. Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987) (citations omitted).
IV. The NYHRL and Discrimination Based Upon Age, Gender, and National Origin
The NYHRL makes it unlawful for an employer "to discriminate against [an] individual in promotion, compensation or in terms, conditions, or privileges of employment, because of such individual's age." N.Y. EXEC. LAW § 296 3-a. Although there are differences between the NYHRL and the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., age discrimination suits brought under the NYHRL are subject to the same analysis as claims brought under the ADEA. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (citation omitted). ADEA claims are analyzed under the same burden shifting framework as claims brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. 239 F.3d at 466 (citation omitted). Thus, the Court analyzes an age discrimination claim brought under the NYHRL as it would any other Title VII claim. Id.; see also Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (citing, inter alia, Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 939 (N.Y. 1985)).
Under the Title VII framework, set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), a plaintiff must first establish a prima facie case by showing that (1) she is a member of the protected class; (2) she is qualified for her position; (3) she has suffered an adverse employment action; and (4) the circumstances surrounding that action give rise to an inference of age discrimination. 411 U.S. at 802. Once the plaintiff has made out a prima facie case, the burden of production shifts to the employer to offer a legitimate, nondiscriminatory business rationale for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). If the employer does so, the presumption of discrimination dissipates and the burden shifts back to the plaintiff to prove ...