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Sandra Glaves-Morgan v. the City of New York

March 21, 2012


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:


Plaintiff, an employee of the New York City Human Resources Administration ("HRA"), brings this action pursuant to 42 U.S.C. § 1981,*fn1 the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq., the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq., and the New York State Civil Service Law, N.Y. Civ. Serv. Law §§ 75-b, 80 (McKinney). Plaintiff alleges that Defendants discriminated against her on the basis of her sex and race, retaliated against her for her complaints of discrimination, and unlawfully demoted her. Before the Court is a motion for summary judgment filed by Defendants on the grounds that (1) Plaintiff has failed to state a Monell claim against the City, (2) Defendant DePippo was not personally involved in the alleged discriminatory or retaliatory behavior and must be dismissed,

(3) Plaintiff has failed to establish a prima facie case of race discrimination or retaliation, (4) the individual Defendants are entitled to qualified immunity, (5) certain of Plaintiff's claims are time-barred, (6) Plaintiff's state law claims are procedurally barred, and (7) the Court should decline to exercise supplemental jurisdiction over Plaintiff's pendant claims. Plaintiff has filed a motion for sanctions, wherein she accuses Defendants of obstructive discovery practices and asks the Court to strike portions of its Rule 56.1 Statement, as well as for other relief. For the following reasons, the motion for summary judgment is granted in part and denied in part, and the motion for sanctions is denied.


Plaintiff began her employment with HRA in 1995 when she was hired as Deputy General Counsel in the Contracts, Business, and Commercial Law division. In 2002, she was promoted to Agency Chief Contracting Officer ("ACCO") and Executive Deputy Commissioner for HRA's Office of Contracts. As ACCO, Plaintiff was the principal contracting officer and advisor to the HRA Commissioner on all matters relating to procurement and contracts for HRA. In this role and with permission from then-Commissioner Verna Eggleston, Plaintiff reorganized the ACCO's office to include the Office of Purchasing and Materials Management ("OPMM")- formerly under the First Deputy Commissioner-because the ACCO was responsible for advising OPMM, but OPMM was not reporting directly to the ACCO.

Plaintiff alleges that upon Robert Doar's appointment as Commissioner, Doar and Thomas DePippo-Doar's First Deputy Commissioner-discriminated against her based on her race, color, and gender. Amongst the adverse actions taken against her were that OPMM was removed from her oversight, her responsibilities as ACCO were reassigned to persons outside the protected classes, she was ultimately removed as ACCO, and she was demoted and received a pay cut. All of this occurred, she alleges, under circumstances that raise inferences of discrimination, including hurtful and offensive statements made by Defendants, favorable treatment given to non-minority and non-female employees, and retaliation for her complaints of discriminatory treatment. Plaintiff's state and city claims are substantially broader than her federal claims, which are concern only race discrimination and are used here to retain jurisdiction.


Plaintiff asks the Court to impose sanctions on Defendants, including prohibiting certain defenses and the introduction of certain evidence at trial and striking portions of Defendants' Rule 56.1 Statement. Plaintiff says Defendants willfully delayed the production of witnesses and other evidence and relied on documentary evidence in their motion for summary judgment that was delivered only after Plaintiff noted the unproduced evidence. Defendants say they complied with discovery requests in good faith and that Plaintiff never filed a motion to compel.

Despite considerable effort by Plaintiff to show me which evidence Defendants have yet to produce, I am unable to determine that there are documents that Defendants are actually withholding. Much of the discovery occurred very late in this case, indeed, discovery seemed to continue well into the briefing of this motion. The parties were unable to agree on a number of depositions, and depositions that had been scheduled were canceled, only to be rescheduled later. This put considerable pressure on the parties. And while this may have resulted in Plaintiff having seen certain evidence only for the first time when opposing this motion, I cannot find such examples that have any bearing on the resolution of the issues discussed below. I am also unable to determine that the delayed depositions were a result of willful or strategic decisions by Defendants. Plaintiff is clearly dissatisfied with what she sees as Defendants' unsatisfactory answers to interrogatories submitted after the later depositions were taken. To the extent that Defendants do identify documents that would more adequately answer certain of Plaintiff's requests, the Court expects that Defendants will produce those documents. Plaintiff, however, was advised by the Court on December 13, 2011, to move pursuant to Rule 37 if any document production was delinquent. She never moved to compel and indeed never even sought a conference with the Court. Discovery ended on December 30, 2011. Plaintiff filed the motion for sanctions on February 15, 2012, two months following the Court's initial prompting. Accordingly, Plaintiff's motion for sanctions is denied.


Summary judgment shall be granted in favor of a movant where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A court must resolve all ambiguities and draw all inferences against the moving party. See LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). The movant bears the burden of establishing the absence of any genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A material fact "might affect the outcome of the suit under the governing law," and an issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (internal quotation and citation omitted). "The party against whom summary judgment is sought . . . 'must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586--87 (1986)). Summary judgment in a discrimination case "may still be appropriate if the plaintiff relies on conclusory allegations of discrimination and the employer provides a legitimate rationale for its conduct." Figueroa v. New York City Health & Hosps. Corp., 500 F. Supp. 2d 224, 228 (S.D.N.Y. 2007) (internal quotation marks omitted). "Indeed, the salutary purposes of summary judgment-avoiding protracted, expensive and harassing trial-apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("Trial courts should not treat discrimination differently from other ultimate questions of fact." (internal quotation marks omitted)).

A.Municipal Liability-The Monell Claim

To hold the City or the individual defendants in their official capacities liable under § 1983, Plaintiff must show that the violation of her constitutional rights was caused by a policy, custom, or practice of the City. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690-- 94 (1978); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989). A "persistent and widespread" practice of a municipalities' officials could also be "so permanent and well settled as to constitute a 'custom or usage' with the force of law." Monell, 436 U.S. at 691 (internal citations and quotation marks omitted).

Defendants argue that the named individual defendants do not have final policymaking authority regarding personnel decisions. Defs.' Supp. 2--3. They point to the New York City Charter, arguing that such authority is vested finally and exclusively in the Commissioner for the Department of Citywide Administrative Services. Id. (citing N.Y. City Charter §§ 3, 8(a), 21, 28, 811, 814(c)). As such, Defendants assert that only the Mayor, the City Council, and the Personnel Director-and not agency heads-have policymaking authority, regardless of whether or not other individuals have the power to make employment decisions. Id. (citing Soto v. Schembri, 960 F. Supp. 751, 759 (S.D.N.Y. 1997)). Where Plaintiff points to Defendant Doar's reorganization of the division-during which Plaintiff and at least one other black employee were terminated-and argues that this constitutes the establishment of a personnel policy or custom, Pl.'s Opp'n 3--5, Defendants argue that while this is an example of a high-ranking official hiring and firing employees under his jurisdiction, it does not constitute a City policy so as to come within the confines of a Monell claim. Defs.' Reply 4.

Plaintiff argues that Defendants' emphasis on the locus of policymaking authority for personnel decisions centers on the wrong question. Rather than looking for policymaking authority regarding personnel matters for the municipality generally, the focus should be on HRA itself. Pl.'s Opp'n 3. It is not necessary, Plaintiff argues, to find a persistent and widespread practice of discrimination at a level higher than the particular agency in question here. Id. (citing Gaffney v. Dept. of Info. Tech. & Telecomm., 536 F. Supp. 2d 445, 475 (S.D.N.Y. 2008)). In Gaffney, the City had ordered the agency to make budget cuts, and the court found that a rational juror could infer a persistent and widespread practice of discrimination by the City where the senior management of the agency executed allegedly discriminatory restructuring policies. Gaffney, 536 F. Supp. 2d at 474--75 ("[W]hen subordinate employees are alleged to have created a ...

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