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Lana Bind v. the City of New York

September 30, 2011

LANA BIND, PLAINTIFF,
v.
THE CITY OF NEW YORK, THE CITY OF NEW YORK DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (HPD), LUIZ C. ARAGON, AS DEPUTY COMMISSIONER OF HPD, AND WILLIAM S. CARBINE, AS ASSISTANT COMMISSIONER OF HPD, DEFENDANTS.



The opinion of the court was delivered by: Richard J. Holwell, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Lana Bind commenced this action on December 22, 2008, alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (2006), the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq. (McKinney's 2010), and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. (2010). Now before the Court is defendants' motion for summary judgment. For the reasons that follow, that motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND

Bind's Initial Employment

Bind, who identifies as being of the Jewish faith, began working for defendant the City of New York Department of Housing Preservation and Development ("HPD"), on June 10, 2002, as Director of the Queens Borough office of the Division of Neighborhood Preservation ("DNP"). (Defs.' Rule 56.1 Stmt. ¶ 1; Pl.'s Opp'n to Defs.' Stmt. of Material Undisputed Facts ("Pl.'s Opp'n Stmt.") ¶ 4.)*fn1 HPD is a mayoral agency of the City, dedicated to improving the availability of housing in New York City, and the DNP, a division within HPD's Office of Preservation Services, has the purpose of preserving the existence of privately held housing and halting abandonment of buildings. (See Defs.' Rule 56.1 Stmt. ¶¶ 3-5.) Bind was given the civil service title of Administrative Staff Analyst, Non-Managerial when she began her employment with HPD. (Id. ¶ 2.) She reported directly to Carol Salgado at first, and then to Ann Marie Mierez, DNP's Director of Field Operations; Mierez in turn reported to Assistant Commissioner William Carbine, who reported to Deputy Commissioner Luiz Aragon. (Id. ¶¶ 5-6.) At the time of Bind's appointment, the Queens Borough office of DNP covered Queens and Staten Island, and had a relatively low work volume when compared to other borough offices. (See id. ¶ 8; Seacord Decl. Ex. E ("Carbine Dep.") at 30.)

On January 28, 2007, Bind was promoted to the managerial civil service title of Administrative Housing Development Specialist; she continued serving as Director of the Queens Borough office. (Defs.' Rule 56.1 Stmt. ¶¶ 9-10.) At some point, she passed the civil service examination for the position of Staff Analyst. (Id. ¶ 11.)

Reorganization of Bind's Office / Hostile Work Environment

In 2006, several employees in Bind's office retired. (Neubarth Decl. Ex. B ("Bind Dep.") at 31-32; id. Ex. E at 4.) As a result, five employees were transferred into the office between July 2006 and July 2007: Jaami Ali (July 24, 2006), Deonarine Purushuttam (December 4, 2006), Carrie Jackson (February 20, 2007), Patricia Friday (April 30, 2007), and Sayed Khalil (July 2, 2007). (Defs.' Rule 56.1 Stmt. ¶ 14; Neubarth Decl. Exs. E, F.) Bind complained repeatedly that the newly transferred employees were detrimental to the operation of her office. (See Defs.' Rule 56.1 Stmt. ¶ 19; Bind Dep. at 31-34, 36-37.) For example, Bind e-mailed Susan Carr, Executive Director of Operations for the Office of Preservation Services, and copied Mierez, recommending that Ali be referred to the Disciplinary Unit for "lateness, absenteeism, and related troubled behavior." (Defs.' Rule 56.1 Stmt. ¶ 20; Seacord Decl. Ex. N.) Bind believed that her office was receiving "all the rejects," employees from other units who had experienced disciplinary problems with their supervisors, (Bind Dep. at 31.)

On July 31, 2007, Carbine and David Schmid, Director of Operations for DNP, visited the Queens Borough office to discuss Bind's concerns about her staff. (Defs.' Rule 56.1 Stmt. ¶ 24; Carbine Dep. at 78.) At the meeting, Bind demanded that the new employees be transferred out of her office. (Neubarth Decl. Ex. F at 3.) After the meeting, it was determined that Ali would be transferred to another office. (Defs.' Rule 56.1 Stmt. ¶ 26.)

On August 15, 2007, Bind wrote a letter to Carbine, with copies to Aragon, Schmid, and Mierez, alleging that the replacement employees had created a "hostile work environment" filled with physical danger and sexual harassment. (Neubarth Decl. Ex. E.) Notably, Bind did not complain that this so-called "hostile work environment" had anything to do with anti-Semitism.

Carbine responded with a letter dated August 29, 2007, which refuted Bind's contentions. (Pl.'s Oppn. Stmt. ¶ 15.) Specifically, the letter stated that Carbine gave Bind a salary increase in March 2007, which "contradict[ed] [Bind's] claim that an unfriendly work environment was purposely created for [her]." (Neubarth Decl. Ex. F. at 2.) The letter asserted that management had adequately addressed Bind's staffing needs, created through retirements, by transferring additional staff. (Id. at 3.) The letter stated that "[t]he only employee that [Bind] described as a problem on March 23rd was Jaami Ali," and that Bind, in fact, had stated that she "got along well with Patricia Friday." (Id.) Carbine's letter noted that Carrie Jackson was discussed only because Bind had sent an e-mail about her to HPD's Director of Staffing Management "with good intentions but in violation of agency protocol." (Id.) With respect to the July 31 meeting, the letter characterized Bind's attitude there as "less than accommodating," and expressed dismay that "[i]nstead of handling the [staff conflict] issues in a responsible manner, [Bind's] solution was to have the staff members transferred out of [her] office." (Id.)

Bind Complains of Anti-Semitism

In her August 15 letter, Bind also accused Carbine of making an "intimidating and derogatory" remark at the July 31, 2007 meeting. (Pl.'s Oppn. Stmt. ¶ 9.) At the meeting, Bind had raised a number of personnel complaints, and Carbine, in response, allegedly told her to "do a mitzvah." (Neubarth Decl. Ex. E), which to Bind implied a "[c]ommandment or directive" to stop complaining about "discriminatory [treatment], racial slurs and hostile work atmosphere." (Id.). Bind felt that "any reasonable person" would interpret Carbine's use of the term as antiSemitic. (Neubarth Decl. Ex. E at 6.) In an August 29, 2007 letter, Carbine replied that he understood the word "mitzvah" to mean "good deed," and that nothing was derogatory about his use of the term. (Neubarth Decl. Ex. F at 3.)*fn2

No other racial slurs or statements of anti-Semitism were identified by Bind in her August 15 letter, HRD complaint, EEOC complaint, or complaint in the present action. However, during her deposition in this case, Bind for the first time alleged that anti-Semitic behavior was rampant at more than a dozen director meetings and project meetings beginning in 2006, including (i) deliberate mispronunciations (including one by defendant Carbine) of the names of Jewish landlords; (ii) comments at these meetings (including one by Mierez) that certain Jewish landlords were "stingy" or "trying to save money"; and (iii) a single statement by an unidentified meeting participant that HPD should publish a brochure in Yiddish to remind Jewish landlords to follow the code. (Bind Dep. at 39-42.)

Reorganization of DNP Offices / "Reasonable Accommodation" Request

In October 2007, Aragon and Carbine decided to reorganize DNP borough offices. (Defs.' Rule 56.1 Stmt. ¶ 36.) Seven of the nine directors in DNP were rotated between offices, (Id. ¶ 38), imitating a staff rotation of Code Enforcement directors that had proved highly beneficial to that division in the past, (Seacord Decl. Ex. S.) The Staten Island operations would be moved from the Queens office to the Brooklyn office, and the Brooklyn office would be split in two, with about 40% of that office's employees moving to a new "Brooklyn East" office, located only six miles from the Queens office. (Defs.' Rule 56.1 Stmt. ¶¶ 37, 40.) As part of this rotation, Bind was transferred from the Queens office to the Brooklyn East office. (Id. ¶ 38.)

On October 12, 2007, Bind was informed of the planned redeployment of directors, to become effective the first week of November. (Id. ¶ 42, Bind Dep. at 104-105.) On October 15, 2007, Bind e-mailed Carbine requesting an exemption from the planned reorganization. (Defs.' Rule 56.1 Stmt. ¶ 43.) In that e-mail, Bind stated that the transfer would create child-care issues regarding her two-year old daughter, and that the transfer would constitute a "reduction of responsibility, jurisdiction, and authority." (Id. ¶ 44, Seacord Decl. Ex. U.) On that same date, Bind also wrote to Stanley Whing, HPD's Equal Employment Opportunity ("EEO") officer, asking to remain at the Queens office as a "reasonable accommodation" in view of her child-care issues. (Defs.' Rule 56.1 Stmt. ¶ 45; Seacord Decl. Ex. V.)

On October 16, 2007, Carbine denied Bind's exemption request. (Defs.' Rule 56.1 Stmt. ¶ 46; Seacord Decl. Ex. S.) Carbine stated that Bind's "family issues" had been considered in the decision to transfer her to the Brooklyn East office, as opposed to one of the other borough offices. (Defs.' Rule 56.1 Stmt. ¶ 46) Carbine also stated that Bind's workload and responsibility would actually increase at the Brooklyn East office. (Id. ¶ 47.)

On that same date, Whing addressed Bind's accommodation request. (Id. ¶ 48; Seacord Decl. Ex. W.) Whing stated that his office lacked formal jurisdiction to address conflicts with child or family care responsibilities, and could only address requests for accommodations based on disability, status as a victim of domestic violence, or religious need. (Defs.' Rule 56.1 Stmt. ¶ 48; Seacord Decl. Ex. W.)

On October 30, 2007, Bind again asked Whing for an accommodation, this time seeking exemption from the transfer based on religious observance. (Defs.' Rule 56.1 Stmt. ¶ 50; Seacord Decl. Ex. Z.) Bind noted that she attended services at a Synagogue five minutes from the Queens office "in the morning enroute to work, in the afternoon during my lunch time and again in the evening enroute home," and that she also attended religious educational activities in the nearby neighborhood of Rego Park. (Seacord Decl. Ex. Z.) Bind alleged that there were no similar institutions "immediately contiguous" to the Brooklyn East office. (Id.)

On November 1, 2007, a meeting was held between Bind, Whing, Plaintiff's counsel Neubarth, and Paul Schreiber, an agency attorney. (Defs.' Rule 56.1 Stmt. ¶ 52; Seacord Decl. Ex. AA; see also Bind Dep. at 135-36.) At this meeting, Bind gave a detailed explanation of her need to attend services with fellow people of Russian origin, and expressed doubts that any other synagogue would suffice. (Bind Dep. at 136; Seacord Decl. Ex. AA.) On November 8, 2007, Whing again denied Bind's request for exemption from the transfer. (Defs.' Rule 56.1 Stmt. ¶ 54; Seacord Decl. Ex. AA.) In a memorandum, Whing informed Bind that she would, however, be granted certain accommodations to facilitate synagogue attendance: (1) a flex arrival time that would allow her to attend the 9:00am services she identified; (2) a two-hour lunch break to attend midday services at a nearby synagogue; and, (3) the option to leave early on Fridays for Sabbath observance. (Defs.' Rule 56.1 Stmt. ¶ 55; Seacord Decl. Ex. AA.)

Meanwhile, in November 2007, Bind was called for a position with the New York City Department of Design and Construction. (Id. ¶¶ 12, 13.) To keep her within the agency, HPD elected on November 8, 2007 to give her a tenure track appointment to Staff Analyst, with a leave from that position so that she could continue to be a managerial employee. Bind's transfer to the Brooklyn East location also occurred on November 8, 2007. (See Neubarth Decl. Ex. I.)

(Id.) A Certificate of Approval of HPD's election was eventually issued on February 5, 2008. (Seacord Decl. Ex. I.)

Bind asked for reconsideration of her request for religious accommodation on November 14, 2007. (Defs.' Rule 56.1 Stmt. ¶ 56; Seacord Decl. Ex. BB.) In a letter to Whing, Bind stated that a two-hour lunch break would be insufficient to allow her to attend midday services at her original synagogue, and that no nearby synagogue was compatible with her beliefs. (Defs.' Rule 56.1 Stmt. ¶ 56; Seacord Decl. Ex. BB.) Her request for further accommodation was denied on November 20, 2007. (Defs.' Rule 56.1 Stmt. ¶ 57; Seacord Decl. Ex. CC.)

From November 27, 2007 to January 7, 2008 Bind, Mierez, and Whing exchanged e-mails regarding permission to leave work between 11:00AM and 12:00PM on Fridays, in order for Bind to attend to her Sabbath needs. (Defs.' Rule 56.1 Stmt. ¶¶ 60-62; Seacord Decl. Ex. DD.) In a December 18, 2007 e-mail, Bind stated that her new work location prevented her from attending services and educational activities during the week, and that she was only able to attend these activities on Friday before the Sabbath. (Defs.' Rule 56.1 Stmt. ¶ 62; Seacord Decl. Ex. DD.) However, in a response dated January 7, 2008, Mierez reiterated that Bind was not to leave before 1:00PM on Fridays. (Seacord Decl. Ex. EE; see also Bind Dep. at 144.)

In January of 2008, Bind began participating in individual Jewish educational seminars at the Educational Center for New Americans, which took place on Wednesday afternoons and sometimes on Friday afternoons. (Pl.'s Oppn. Stmt. ¶ 22.) In a January 7, 2008 e-mail, Mierez approved a 2:00PM release time on Wednesdays for Bind to obtain religious instruction. (Defs.' Rule 56.1 Stmt. ¶ 63; Seacord Decl. Ex. EE; see also Bind Dep. at 144.) This accommodation was merely an early leave schedule, and Bind continued to work the required 35 hour week. (Pl.'s Oppn. Stmt. ¶ 24.)

Formal EEO Complaint

On October 24, 2007, while her accommodation requests were still under consideration, Bind lodged an internal complaint with HPD's EEO office. (Defs.' Rule 56.1 Stmt. ¶ 49; Pl.'s Opp'n Stmt. ¶ 20.) In her complaint, Bind raised claims of religious discrimination and retaliation against Carbine and Aragon. (Neubarth Decl. Ex. G.) In particular, Bind complained that Carbine used the word mitzvah in a "derogatory" and "discriminatory" context, that she was told to cease her "expression of dismay over the manner in which [she had] been treated (discriminatory, racial slurs and hostile work atmosphere)," and that she had concluded that she was subject to "discriminatory Anti Semitic treatment designed to create a hostile work atmosphere, infliction of emotional distress with the goal of tender resignation because I have chose [sic] to complain about Anti-Semitic Approach." (Id.) Bind also alleged that her transfer was "a form of retaliation for complaining against Anti-Semitic Treatment." (Id.)

Bind's EEO complaint was denied on March 10, 2008. (Defs.' Rule 56.1 Stmt. ¶ 74; Seacord Decl. Ex. MM.) The EEO office found that Bind's allegations in the complaint were unsubstantiated. (Defs.' Rule 56.1 Stmt. ¶ 74.)

Attempted CCHR Complaint

On or about November 28, 2007, Bind attempted to file a complaint of discrimination with the New York City Commission on Human Rights ("CCHR"). (Defs.' Rule 56.1 Stmt. ¶ 58; Seacord Decl. Ex. OO.) In her complaint, Bind alleged that Carbine and Aragon discriminated against her and retaliated against her by using "discriminatory and anti-Semitic terms" and "threatening" her. (Defs.' Rule 56.1 Stmt. ¶ 58; Seacord Decl. Ex. OO.)

Bind's complaint was refused by the CCHR, in part because her EEO Complaint was still pending. (Defs.' Rule 56.1 Stmt. ¶ 59; Seacord Decl. Ex. PP.)

Formal EEOC Complaint

On or about January 18, 2008, Bind filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"), alleging religious discrimination and retaliation. (Defs.' Rule 56.1 Stmt. ¶ 64; Pl.'s Opp'n Stmt. ¶ 20; Neubarth Decl. Ex. H.) In her EEOC charge, Bind complained that (1) on June 22, 2007, Carbine used a discriminatory and anti-Semitic term (mitzvah); (2) on August 7, 2007, Bind "was threatened and told to stop complaining about Anti-Semitic treatment or look for another job;" (3) on November 8, 2007, Bind was transferred to another work location; and (4) on November 8, 2007, Bind's request for a reasonable accommodation of her "religious observance needs" was rejected. (Defs.' Rule 56.1 Stmt. ¶ 65; Neubarth Decl. Ex. H.) After Bind's employment was terminated, Bind amended her charge to include that her termination constituted a further act of retaliation by HPD. (Defs.' Rule 56.1 Stmt. ¶ 80; Seacord Decl. Ex. QQ.)

On or about September 24, 2008, the EEOC issued Bind a notice stating that it was unable to conclude that the information obtained established statutory violations, and informing Bind of her right to initiate suit under Title ...


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