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Francine Moccio v. Cornell University

August 27, 2012

FRANCINE MOCCIO, PLAINTIFF,
v.
CORNELL UNIVERSITY, NEW YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS, AND HARRY C. KATZ, DEFENDANTS.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:

OPINION & ORDER

Plaintiff Francine Moccio brings claims of gender discrimination, retaliation, unequal pay, and breach of contract against Cornell University ("Cornell"), the New York State School of Industrial and Labor Relations ("the ILR School"), and Harry C. Katz (collectively, "defendants"), under the Equal Pay Act, 29 U.S.C. § 206 ("EPA"), Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, N.Y. EXEC. LAW § 290 et seq. ("NYSHRL"), the New York City Human Rights Law, N.Y. CITY ADMIN. CODE § 8-- 101 et seq. ("NYCHRL"), and New York common law. Moccio was a Senior Extension Associate and director of the Institute for Women and Work, a center for the study and advocacy of working women's issues at the ILR School's Extension Division. She alleges that defendants unlawfully discriminated against her on the basis of her gender, retaliated against her for having engaged in protected activity, and breached an employment contract by terminating her before the end of the contract term. Defendants deny all of Moccio's claims.

Defendants move for summary judgment on Moccio's claims under Federal Rule of Civil Procedure 56. For the reasons that follow, defendants' motion is granted.

I.Background*fn1

A.Key Persons, Entities, and Terms

Between 1990 and June 2009, Moccio was employed by Cornell as a Senior Extension Associate in ILR's Extension Division. Pl.'s 56.1 ¶ 4. Moccio holds a bachelor's degree in sociology from the City University of New York at Lehman College in the Bronx, New York, and a master's degree and a doctoral degree in anthropology from the New School for Social Research in Manhattan, New York. Pl.'s 56.1 ¶ 3.

The ILR School is one of four "contract colleges" at Cornell. It is a partnership, created by statute, between New York State and Cornell. Katz Aff. ¶ 3. The ILR School's mission is to "conduct educational, research, and extension programs on the workplace, workplace relations, labor, human resources, and employer/employee relations." Id. ¶ 3. The ILR School offers a four-year undergraduate program in industrial and labor relations, a master's degree, a doctoral degree, and various non-degree programs for practitioners. Compl. ¶ 4; Katz Aff. ¶ 3. The faculty at the ILR School specializes in personnel and human resource management, labor law and history, and social statistics. Compl. ¶ 4. New York State provides partial support for Cornell's contract colleges, including ILR. Id. The state appropriations for ILR come through the State University of New York ("SUNY") system. Defs.' 56.1 ¶ 12.

The ILR Resident Division includes undergraduate and graduate degree programs, as well as academic research programs. Katz Aff. ¶ 4. The programs associated with the Resident Division are located primarily on Cornell's main campus in Ithaca, New York. Id.

The ILR Extension Division facilitates programs designed for working practitioners. Defs.' 56.1 ¶ 8; Katz Aff. ¶ 5. At all relevant times, there were four regional Extension Division offices-in Albany, Buffalo, Manhattan, and Rochester-and most programming originated from those offices. Id. Moccio primarily worked out of the Extension Division office in New York City. See Deposition of Francine A. Moccio ("Moccio Dep."), Marek Aff. Ex. 1, at 23. Most faculty members who teach in the Extension Division are extension associates, or, like Moccio, senior extension associates ("SEAs"). Defs.' 56.1 ¶ 9.

Defendant Harry Katz has been the Dean of the ILR School at Cornell University since July 1, 2005, and a tenured professor at ILR since 1985. Compl. ¶ 5; Defs.' 56.1 ¶ 2. Under Cornell's bylaws, as dean, Dean Katz had ultimate responsibility for all personnel matters in the ILR School. Defs.' 56.1 ¶ 3. As of July 1, 2005, the ILR Extension had 132 employees. Id. ¶ 11.

Susanne Bruyere has been the Associate Dean of Outreach/Extension at ILR since fall 2005. Defs.' 56.1 ¶ 4; Deposition of Susanne Bruyere, Marek Aff. Ex. 7, at 16 ("Bruyere Dep."). Bruyere is also a professor at ILR, and the director of the Employment and Disability Institute at ILR.

SEAs are employees of ILR with limited term, non-tenure track positions. Defs.' 56.1 ¶ 10; Katz Aff. ¶ 6; Defs.' 56.1 Ex. 5 ("There are no tenure track faculty appointments in the Extension Division. Tenure track faculty lines (and appointments) exist only in the Resident Division."). SEAs are each initially appointed to a three-year term at the ILR School, and may later be renewed for successive terms. Bruyere Dep. at 8. Each reappointment is "contingent upon available funding, satisfactory performance and available work." Defs.' 56.1 Ex. 40.

The Institute for Women and Work (the "IWW") was founded in 1976 as a center for the study and advocacy of working women's issues. Pl.'s 56.1 ¶ 1. The IWW received funding from state and private grants. Id. ¶ 2. In 1990, Cornell hired Moccio as Director of the IWW and appointed her to the position of SEA. From 1990 through June 30, 2009, Moccio was IWW's only full-time employee. Id. ¶ 4. In or around 1993, Moccio successfully completed her first peer review process, and was reappointed to another three-year term. Moccio Aff. ¶ 8.

B.Events Relevant to Ms. Moccio's Claims

Moccio's claims arise out of her dealings with various members of the Extension Division faculty and administration between 2005 and her termination in 2009, and implicate a number of events during that period: (1) the reorganization of the ILR Extension Division in 2005 that caused Moccio to be reassigned to a new thematic group and to report to a new supervisor; (2) a request by Moccio's supervisor that she fill out a Flexplace Agreement; (3) a decision to move Moccio to a new office, first raised in 2006 and implemented in 2008; (4) Extension Division workforce reductions in 2006; (5) a "lower than average" salary increase in 2006; and (6) a request by Moccio's supervisor that she register as a lobbyist with the State of New York. Moccio contends that these incidents were adverse employment actions motivated by gender discrimination and were undertaken in retaliation for her having engaged in protected activity. Moccio also contends that (7) there was gender-based unequal pay in the ILR Extension Division as of 2008, reflecting gender-based discrimination; and (8) her termination, communicated to her in 2008 and effective in 2009, was in retaliation for prior protected acts. The following are the facts relevant to these events.

C.The ILR Extension Division's Reorganization in 2005

When Dean Katz became dean in July 2005, he learned that the Extension Division was running a deficit due to high expenses, low revenue, and declining support from New York State. Defs.' 56.1 ¶ 15. Starting in fall 2005, Dean Katz reorganized the Extension Division by sorting the professional staff into eight new thematic groups, organized by their substantive work. Pl.'s 56.1 ¶ 8; Defs.' 56.1 ¶ 16. The groups were: Organizational Change Management; Development and Human Resources Management; Labor Union; Workforce Industry and Economic Development; Diversity and Inclusion; Employment and Disability; Conflict Resolution; and Employment and Labor Law. Pl.'s 56.1 ¶ 8. Dean Bruyere advised Dean Katz as to the reorganization, and assisted him in selecting team leaders, who were four women and four men. Defs.' 56.1 ¶ 4; Bruyere Dep. at 15--16; Bruyere Aff. ¶ 2, 8.

At the time he took office, Dean Katz also perceived that "ILR did not have well-documented records regarding the performance of the individuals who worked in the Extension Division." Katz Aff. ¶ 28. "There had been a history of limited performance reviews and in the reviews that had occurred there were few indications of poor performance." Id. Dean Katz was under the impression that "evaluators were reluctant to report negative things about anyone." Id.

As part of the 2005 reorganization, Dean Katz placed IWW, and its director, Moccio, in the Diversity and Inclusion thematic group. Pl.'s 56.1 ¶ 9. Dean Katz moved IWW to that group because he "'thought that the Institute for Women and Work and [Moccio's] activities were most closely connected to [the] Diversity and Inclusion theme.'" Id. ¶ 9 (quoting Deposition of Harry C. Katz ("Katz Dep."), Marek Aff. Ex. 2, at 72). As a part of this reorganization, IWW would no longer be a "free-standing sub-unit in Extension," and Moccio would no longer report directly to the dean. Katz Aff. ¶ 10. Instead, she was to begin reporting directly to the new Diversity and Inclusion group leader, Christopher Metzler. Pl.'s 56.1 ¶ 9.

In or around September 2005, upon learning of this decision, Moccio asked if she and IWW could remain a free-standing entity, not assigned to any of the new thematic groups. Pl.'s 56.1 ¶ 10. Dean Katz denied that request, on the ground that it would perpetuate the "'high fragmentation of programming and coordination'" that he perceived in the Extension Division. Id. (quoting Katz Dep. at 72--73).

On or around October 4, 2005, Metzler met with Moccio to discuss the new organization. After the meeting, Metzler called Cathy Mooney, the Executive Director of Extension for ILR. Metzler complained that Moccio displayed "open hostility." Defs.' 56.1 Ex. 3; Mooney Aff. ¶ 4.*fn2 Mooney later reported to Deans Katz and Bruyere that Metzler had "adjourned the meeting because of Francine's hostility and his inability to move forward in the discussion with her." Defs.' 56.1 Ex. 3; Mooney Aff. ¶ 4. Moccio, for her part, later described Metzler's behavior at the meeting as "very uncollegial, professionally inappropriate and insulting." Defs.' 56.1 Ex. 4. Moccio stated that she found Metzler to have a "big boss mentality," and that he had been "trying to throw [his] weight around"; she explained to Mooney that "[i]t's not going to work if this is the posture that these program leader folks are taking." Defs.' 56.1 Ex. 4.

Around the same time, Moccio asked that she be given a tenured faculty position. Katz Aff. ¶ 12. Dean Katz informed Moccio that, under University policy, there were "no tenure track faculty appointments in the Extension Division." Defs.' 56.1 Ex. 5. He explained that tenure-track positions were periodically announced in the Resident Division of ILR, and that when such positions become available, the school conducts "internationally advertised searches" to fill those positions. Id. Additionally, Resident Division "faculty appointments require teaching in the undergraduate and graduate programs on the Ithaca campus and the conduct of research." Id. Dean Katz also explained that Cornell had created "a limited number of non-tenure track professorial appointments," that appointments to such "clinical" professorships are made by the Provost for renewable five-year terms, and that as of October 2005, the only person to hold a clinical professor position at the ILR School was Dean Bruyere. Defs.' 56.1 Ex. 5. Moccio asked Dean Katz to review her experience, because she believed that her record was strong enough to compete in such a process. Katz. Aff. ¶ 12. On October 8, 2005, after receiving Moccio's resume and qualifications, Dean Katz informed her, by email, that, in his view, she did not have adequate qualifications to "meet[] the standard the Provost has been using for a clinical professor appointment." Id. Dean Katz also offered to "provide further clarification of the nature of [Resident Division tenure-track] faculty positions, the standards used to evaluate candidates, and [his] assessment of [Moccio's] record." Id. Moccio did not respond to Dean Katz's October 8, 2005 email, nor did she raise the subject again. Id. ¶ 12; Defs.' 56.1 Ex. 5.

In an October 12, 2005, email to Moccio, Dean Bruyere requested that Moccio "meaningfully integrate" into the new structure of the ILR School. Dean Bruyere explained that "the diversity and inclusion area seems like the natural fit" for IWW. Defs.' 56.1 Ex. 6.

At the same time, Dean Katz and Ron Seeber, the Vice Provost for Statutory Affairs at Cornell, discussed the possibility of moving IWW, and thus Moccio, out of the ILR School altogether, thereby granting her requests to not be placed in the Diversity and Inclusion group and responding to her misgivings about the new ILR organizational structure. Defs.' 56.1 Ex. 7; Katz Aff. ¶ 14. Under that approach, financial support from the state legislature would have been directed to Moccio, not Cornell. This alternative was not pursued. Defs.' 56.1 ¶ 25.*fn3

In an October 31, 2005 email to Moccio, Dean Bruyere stated: I am following up on your . . . suggestion of an alternate configuration for the organizational structure for the Institute, and women and work programming. We continue to see the diversity umbrella as the broadest overarching theme for a variety of programming, including that of the area of women and work. . . . . We also want our faculty to being to work more collaboratively as a team, rather than independent consultants or contractors . . . . Chris [Metzler] will therefore be calling regular meetings that you will be expected to attend, asking for budget information to look at the overall financial health of the area that he will be responsible for, and also doing goal setting and performance management with the group and individual members. . . . Defs.' 56.1 Ex. 9.

On November 3, 2005, Moccio met with Deans Katz and Bruyere to discuss Moccio's complaints about the placement of IWW within the Diversity group. Katz Aff. ¶ 18. Dean Katz attests that at the meeting, Moccio "aggressively and repeatedly yelled" at him; he describes the interaction as "bizarre and embarrassing, having occurred in an open public space [at the Cornell Club in New York City] where others were dining as well." Katz Aff. ¶ 18. Dean Bruyere similarly attests that Moccio "was very visibly upset" and "inappropriately very verbally loud in a public setting." Bruyere Aff. ¶ 3. Moccio, by contrast, attests that she never yelled, but was upset when "told [she] either had to remain in the Diversity Group under the leadership of Metzler, with whom Dean Katz knew [she] had a tense relationship [], or leave Cornell." Moccio Aff. ¶ 13.

In a November 5, 2005 email to Moccio, Dean Bruyere stated: This comes as a follow-up to our breakfast meeting on Thursday . . . We continue to feel that it is important for each individual professional, project, or institute to fit within the broader scheme of topics, and therefore, want you to imbed your work within the diversity area. We see the IWW being set within the context of this larger effort as a way to better position you and this work to garner new work and funding from outside agencies. As we confirmed, this does not mean that the [IWW] will lose its identity, and certainly can remain a discrete entity within the larger group. . . . [Y]ou will continue to serve as the IWW Director and be the Principal Investigator/Project Director for the funding that you secure.

In this organizational structure you will report to the Thematic Area Lead, Chris Metzler, and will begin dialogues with Chris about goal setting for the coming year and beyond.

Defs.' 56.1 Ex. 11.

In a November 6, 2005 email to Vice Provost Seeber, Dean Katz attached the text from Dean Bruyere's October 31 email to Moccio, stating: "As you will see from below, we are not eliminating Francine's role as IWW director, just making her report to someone other than the Dean and participate in a thematic group. She doesn't seem to grasp or want to accept that." Defs.' 56.1 Ex. 12.*fn4

In a November 7, 2005 email to Deans Katz and Bruyere, Moccio wrote: "What have I done and the Institute done to provoke you to do this without even any word of discussion or consultation . . . . I hope that this action you're taking will provide some great benefit to you because it certainly will deprive working women of access to their workplace rights." Defs.' 56.1 Ex. 8.

After the November 3, 2005 meeting, Dean Katz told the ILR Human Resources Director, Lisa Abbott, of his communications with Moccio. Deans Katz and Bruyere asked Abbott to meet with Moccio to "discuss her inappropriate behavior." Katz Aff. ¶ 19. Before Abbott met with Moccio, Abbott wrote to Vashti Peagler, a Cornell University human resources staff member:

I wanted to get your advice with respect to a situation that is evolving in the NYC office. I know that you have met with Francine [Moccio] in the past and are familiar with her behavior. She is not responding very well to the recent reorganization of the extension division . . . . Chris [Meltzer] and Francine attempted to have a meeting about two weeks ago that was disastrous. Susanne [Bruyere] has asked me to facilitate the meeting she is asking Francine to participate in, with Chris and Harry [Katz]. Assuming she actually shows up, do you have any suggestions in terms of how to guide the meeting such that it doesn't turn into another disaster?

Defs.' 56.1 Ex. 11. The "tense relationship" between Moccio and Metzler continued. Moccio Aff. ¶ 13; Katz Aff. ¶ 21. Dean Katz did not receive any similar complaints about Metzler's management style from any other professional who reported to him. Katz Aff. ¶ 21. Dean Katz concluded that Metzler was "doing his absolute best to manage an employee who refused to be managed." Id.

In a November 22, 2005 email responding to an earlier email from Moccio, Metzler stated:

This e-mail is part of the pattern of behavior that you have exhibited since you have been told that you are reporting to me. That behavior is one of utter disrespect and contempt. In addition, it is symmetrical with your pattern of consistently misstating events and raising baseless allegations that you are being somehow singled out. . . . I am asking for a schedule from you and everyone on the team . . . . in the spirit of team work. So, your day laborer analogy is not only inaccurate, it is offensive and it is simply not based in fact. . . . Your allegations that I would somehow do something to destroy the quality of the Cornell offerings is without merit and baseless. Once again, it is an analogy that seeks to denigrate my leadership and buttress your baseless allegations . . . . You are not being treated differently from anyone else. My request for information was sent to the entire team, not just to you. . . . [S]ince the start of your reporting relationship to me, you have been consistently rude, impolite, and disrespectful. . . . You are certainly welcome to disagree with my management style and to offer "constructive criticism." As a doctrinal matter constructive criticism is devoid of vitriol, and not offered as thinly veiled threats and as a substitute for a covert agenda.

Defs.' 56.1 Ex. 13.

Dean Katz then determined to move Moccio and IWW from the Diversity and Inclusion group (under Metzler's leadership) to the Workforce Industry and Economic Development ("WIED") group, under the leadership of Lou Jean Fleron. In a November 25, 2005 email to Dean Bruyere, Abbott, and Mooney, Dean Katz explained his change of course. Defs.' 56.1 ¶ 43; id. Exs. 17, 18. WIED, he noted, focused on workforce development, a subject related to Moccio's focus on promoting women's access to higher-level professional opportunities. Dean Katz wrote:

[T]he relationship between Francine and Chris has reached the point of no return. I also worry that Chris will get further distracted dealing with Francine and possibly discouraged. Also, I don't see that it would be either fair or, helpful to future dealings with Francine, to deny her the option of transferring to a different thematic group. . . . So I am led to the view that we should allow Francine and the IWW to be shifted to WIED . . . . I think Lou Jean has the experience and backbone to deal with Francine.

Defs.' 56.1 Ex. 14.*fn5

In a November 28, 2005 email to Dean Katz, Moccio stated: "I am writing to request that tomorrow's meeting be postponed . . . . because of the tremendous discomfort and stress I feel due to the severe hostile work environment and retaliatory environment that has been created." Defs.' 56.1 Ex. 15. That same day, Dean Katz responded to Moccio, proposing that she and IWW be relocated in the WIED group under Fleron's leadership. Moccio responded: I've thought about your offer and I would like to ask if you would consider and accept some conditions . . . . I am requesting to report to the Associate Dean of Outreach as well [as Ms. Fleron]. . . . [T]he IWW unlike any other programs in extension always reported to either the Associate Dean or ILR Dean. There are times when the grants we receive have to do not only with income, but with individuals that Cornell values as prestigious . . . . Defs.' 56.1 Ex. 16. Dean Katz responded:

I do not see the need for you to simultaneously directly report to the Associate Dean. The special prestigious appointments and other matters you describe can be accommodated within the thematic group structure, and furthermore, similar issues may arise for other Centers and Institutes and thus a special reporting relationship for you would undermine the purpose of thematic groups. . . . Direct reporting relationships are not being provided to any individual extension faculty. Id. Moccio responded:

[I] accept your offer after much thought as I believe [Ms. Fleron] has no intention, lik[e] Mr. Metzler to push me out of my job in light of his continuation of a hostile work environment. But with all due respect, the fact that IWW has reported to local level folks, and to the Associate Dean and ILR Dean has never interfered with encouraging resident and extension faculty interaction . . . . With all due respect, I don't see the logic in this especially since the IWW has always had this special relationship and for very sound reasons. Be that as it may, I would like to accept your offer to transfer and begin to try to recover from the damage that has been done . . . due to these terrible three months of harassment. . . . I am still apprehensive that the harassment may start all over again but hope this is just . . . an unwarranted fear.

Id.

After resolution of the dispute relating to the placement of IWW and Moccio, Cornell personnel continued to consider alternative means of addressing the workplace tension involving Moccio. In a December 13, 2005 email, Peagler, the Cornell human resources staffer, wrote to Abbott, the ILR human resources director, discussing the need to involve other Cornell personnel to discuss "concerns about Francine's recent behavior" and "the matter of her having stated repeatedly, in writing (and orally?), that she was being harassed." Defs.' 56.1 Ex. 20. In her December 14, 2005 response to Peagler, Abbott reported: "This situation continues to unfold -- more insubordinate behavior. Harry [Katz] and I met this morning and we are in agreement that there will be . . . a conversation between Francine and myself." Id.

D.The Request that Moccio Sign a Flexplace Agreement

On January 6, 2006, Fleron, the head of the WIED thematic group in which IWW and Moccio had been placed, asked Moccio to fill out a flexplace agreement, an agreement that employees whose work was not primarily in the office were expected to complete pursuant to Cornell University policies. Defs.' 56.1 ¶ 49; id. Ex. 23; Pl.'s 56.1 at 60 (admitting to Defs.'

56.1 ¶ 49). Fleron wrote: "I forgot to mention one other thing that we are going to need to do in the fairly near future. We need to draw up a flexwork agreement for you. The administration is requiring those for anyone who's [sic] work is not regularly in the office." Defs.' 56.1 Ex. 22.

On January 16, 2006, Moccio responded to Fleron's request: I have no problem filling out a Work-Flex agreement but first please send me the attendance list of the faculty in the 34th street office, and campus-wide regarding when they regularly or virtually do their work either specifically sitting at their desks . . . . please also list the names of faculty in extension who are being asked to fill out a Work-Flex agreement as part of this new reorganization. . . . I really do need to know who is spreading the rumor regarding my attendance at work. Defs.' 56.1 Ex. 23. Fleron responded, on the same date:

As I explained to you on the phone today, I discussed with Lisa Abbott the importance of universal and equitable application of the new policy on flexplace agreements, and I am confident that the policy will be fairly applied. I am forwarding your concerns to Lisa as well and in the next email I'll forward to you the communication that she sent to all the thematic leads. That communication states the general policy and includes a link to the university policy which you may also read.

I'm really hoping, Francine, that we can avoid any suggestion that "allegations" have been made against you, as that is simply not the case. You are not the only one of the WIED group that, as a simple matter of fact, works from out of the office some part of the time on a regular basis. We need to be sure that whatever such work arrangements . . . be consistent with the university policy. You may be sure that I will be applying the flexplace policy evenly and fairly to everyone in our unit.

Defs.' 56.1 Ex. 23. A meeting between Moccio and Abbott was scheduled to be held on or around January 17, 2006. Moccio wrote to Abbott, the ILR human resources director, directly.

I would like to know what criteria you have used in selecting certain faculty at this point in time to review these informal agreements with? And the list of faculty around the State that have been asked to have their workplace flexibility agreements reviewed during this reorganization? Please forward me this information. . . . for the purpose of judging whether my workplace flexibility patterns are atypical. . . . When I was hired at the ILR Extension Division, I understood that this was a professional faculty position with workplace flexibility built in so that it would be possible to fulfill the requirements of the job . . . . I would now like to know if my terms and conditions of my job have changed? Is it a support staff position with responsibilities to be at a desk from 9 a.m. to 5 p.m.?

Defs.' 56.1 Ex. 25; see also Pl.'s 56.1 at 61.

Abbott drafted a document to guide her conversation with Moccio at their scheduled meeting. Items that Abbott intended to discuss were instances of Moccio's "[i]nappropriate behavior," including the "[i]ncident at Cornell clu[b] in November" at the meeting with Dean Katz and Dean Bruyere, "missed meeting w/Dean," "[l]ate to WIED group meeting," "[o]utburst during WIED group meeting-overtly poor behavior," and "[n]ot providing information to the Dean as requested repeatedly." Defs.' 56.1 Ex. 26. Abbott's notes also stated:

While each of these situations in and of itself does not rise to the level of formal policy violations, the pattern is there. I seek to understand why your tone is consistently so strong. . . . The tone of your responses to e-mail correspondence, and some of your demonstrative behavior is disrespectful, borderline insubordinate, and certainly making me uncomfortable. . . . You are certainly free to express your opinions and ideas, but again, your tone is harsh and extreme and I'd like for us to strategize about ways you can get your point across without being insolent.

Id. After Moccio's request to reschedule the meeting, a conversation between the two was held on February 9, 2006. Abbott's notes reflect that they "spent some time discussing Francine's feelings of being harassed." Id. Moccio cited several examples to Abbott, including the "reorganization of her work group back in September," "the decision to have the IWW fall under the purview of the Diversity group," and the "review of Francine's work book on the IWW, which she perceived as an impromptu performance review." Defs.' 56.1 Ex. 26.

E.The 2006 Request that Moccio Move Offices

In early February 2006, Mooney, Executive Director of the Extension Division, decided to relocate the office of Moccio's administrative assistant, Jo-Ann Perkins. Defs.' 56.1 ¶ 68;

Pl.'s 56.1 at 66; Mooney Aff. ¶ 6. Ed Acevedo, the Extension Division Deputy Metropolitan Director, explained in an email message on February 7, 2006: "Jo-Ann is being moved out of the office by the end of the week. I will talk to you about where we will move the IWW files intact as you had requested and to find the cubicle for your interns with the computer installed, etc." Defs.' 56.1 Ex. 28. In response, Moccio sent an email to Acevedo, copying Mooney:

[W]hen there are other extension programs in this office that have two offices and have less seniority that the IWW, and do not bring in the income we bring, why is the IWW's 2nd office being singled out to be thrown out and used for some other program? . . . Also you should have secured the cubicle first so that I could put my work and papers . . . . I have to pack boxes and lift things in order to secure my files, and not disrupt the continuity of the IWW's work, and I'm five months pregnant. I think this is a really terrible thing you are doing.

Defs.' 56.1 Ex. 28. Acevedo responded:

[S]upport personnel are provided with cubicles before any space is provided for interns and students. A program's seniority or longevity is not used as a factor to determine the number of offices a program is to occupy. The IWW is not being singled out and I am sorry that you are feeling that it is. . . . Please note that I am arranging to have persons other than you and/or Jo-Ann move the file cabinets and boxes of materials. I have not asked you or Jo-Ann to make any moves by yourselves . . . . We hope to make this move with minimal or no disruption to the flow of work for IWW.

Id. Moccio responded:

I do not know what you are trying to deny here but . . . I do not accept your re-edited version here. . . . You threw her [Jo-Ann] out and my program. The IWW program has occupied that office for 17 years now and has used it thoroughly. You never even asked me if I needed it, you have just written to me singling me and my program out to get out of the office by the end of the week, and threw my secretary out on a minute's notices. The rest of your explanation and attempt to rationalize your actions is totally unacceptable to me. This is harassment of a very basic nature.

Id. Mooney and Alvarez agreed not to respond to this message. Id. Mooney forwarded the interaction to Deans Katz and Bruyere, and to Abbott. Id.

On February 9, 2006, Moccio spoke with Abbott about the move. Abbott sent an email to Mooney to document prior email correspondence and the contents of her conversation with Moccio. Abbott represented that she had explained to Moccio that the Extension Division "needed to make room for new staff and that other offices would also be moved over the next few months." Defs.' 56.1 Ex. 29. Abbott stated that Moccio had stated that Abbott's approval of the move was "disrespectful," and that Moccio "hop[ed] that [Abbott] wouldn't be able to sleep at night because of what [she] had done." Id. After that exchange, on February 10, 2006, Mooney emailed Moccio about the office move:

Let me be very clear about exactly what is going to happen today.

JoAnn Perkins has been moved to the cubicle diagonally across the corridor from her former private office. All of JoAnn's personal files, computer and supplies were moved with her.

We've identified a cubicle, directly across from your office, that will be assigned to your intern. The intern can remain in this space until we need to space for a permanent office staff. If that happens, we will identify alternative space for the intern. . . .

All the materials from the bookshelves are packed in boxes and will be placed in locked storage until you tell us if you want them place[d] on shelves in the intern cubicle, or elsewhere.

Ed is anxious to have a conversation with you about where you would like the books and supplies located. As soon as you are ready to have that conversation, we will move the stored materials and unpack the boxes.

Id.

On April 6, 2012, after several email messages between Moccio and Fleron regarding the integration of IWW with the WIED group, Dean Bruyere instructed Fleron to copy Abbott on all communications with Moccio, because the ILR School was "building a file on the situation." Defs.' 56.1 Ex. 31. F.Budget Concerns and Workforce Reductions in 2006

On June 27, 2006, Fleron sent an email to the faculty in the WIED group about budgetary shortfalls in the Extension Division.

As a follow-up to the message you just received about the financial situation of the Extension Division, I want to let you know that I will be talking with each of you about ideas you have for expense reduction and revenue growth for our unit.

This deficit situation spotlights our need to generate contracts, grants, programs and projects as quickly as possible and to be ever more mindful of the most effective utilization of our resources.

Defs.' 56.1 Ex. 35. During the ensuing months, Fleron and Moccio communicated multiple times about the budget of the WIED group and IWW. In an October 16, 2006 email in response to an earlier message from Moccio, Fleron stated:

As it seems now clear, IWW has, exactly as we had indicated on the preliminary budget information provided [to] you as a part of our WIED budgeting process, $100k from the state of New York for 2006-07. . . . $100k is not enough to sustain the institute's activities, and, exactly as all ILR extension units, IWW will need to have a budget target and specific plan for securing additional funding to work toward sustainability. . . . I proposed [a $60k income goal] to you (as part of our regular WIED planning process) at our WIED meeting in NYC on February 23, 2006. Each WIED team member responsible for a budget area was to revise that information . . . . [t]his information has been communicated to the WIED team in several subsequent email updates, the last of which I just reforwarded to you last Thursday.

Defs.' 56.1 Ex. 38 (emphasis in original). Fleron added:

I am asking of you NO MORE AND NO LESS that I am asking of all WIED team members and that is to provide us adequate information on budget projections in order to do responsible resource planning. . . . Given the terrible storm and state of emergency here, we are just now finishing up the revised budgets for WIED, so if you could send me that information today, that would be great. It was originally due on [October] 12th. Id. (emphasis in original).

In the fall of 2006, Dean Katz decided to end the entire Diversity and Inclusion thematic group. Katz Aff. ¶ 35. As part of this workforce reduction, six faculty members were terminated. See Oral Arg. Tr. 10 (Apr. 17, 2012) (Dkt. 79). Following the layoffs, the Extension Division team structure was reorganized into five (rather than the original eight) thematic groups. Bruyere Aff. ¶ 12.

G.2006 and 2007 Salary Increase and Reappointment

In a June 15, 2006 letter, Fleron informed Moccio that she would receive a salary increase for the following year reflecting a 2% cost of living adjustment. Defs.' 56.1 Ex. 32. The 2% increase, determined by Deans Katz and Bruyere, represented a lower than average pay increase. Defs.' 56.1 ¶ 76; Katz Aff. ¶ 32. The letter explained that the 2% increase "reflect[s] some areas requiring improvement in your overall performance." Defs.' 56.1 Ex. 32. After Moccio inquired why her pay increase was "below the norm and apparently punitive," Fleron explained that the 2% increase (rather than the maximum 3%) "reflected the initial difficulties you [Moccio] had in adjusting to the recommendations for the new thematic structure, rejecting the dean's first recommendation for your affiliation." Defs.' 56.1 Exs. 33, 39. Fleron explained that the 2% increase also "took into account some delays and postponements in completing your [Moccio's] planned work." Defs.' 56.1 Ex. 39.

In response, Moccio requested that Fleron provide her "with a breakdown of the wage scales in ILR Extension among Senior Extension Associates including male and female." Id. Moccio also stated that "it was [her] understanding that Dean Katz's first assignment for all senior extension [associates] was a recommendation and that [they] had a choice as to whether to accept the assignment, or request a transfer to another thematic area." Id. She added that "Mr. Meltzer continued to harass and harangue me to the point that I had no recourse but to request a transfer to another thematic area." Id.

In a letter dated March 21, 2007, Dean Katz extended Moccio's appointment as SEA for the period April 1, 2007 through March 31, 2012. Defs.' 56.1 Ex. 40. In that letter, he stated: "All appointments are contingent upon available funding, satisfactory performance and available work." Id.

In a June 11, 2007 letter, Fleron informed Moccio that she would receive a salary increase reflecting a 3.5% performance-based merit award. Defs.' 56.1 Ex. 41. Fleron stated that the ILR School's "preeminent standing was confirmed in the positive feedback we received this spring ...


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