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Caban v. City of New York


November 30, 2012


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Wanda Caban has sued the City of New York (the "City"), the City University of New York ("CUNY") Borough of Manhattan Community College ("BMCC"), and Robert Rafferty, alleging violations of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"),*fn1 state and city human rights laws, 42 U.S.C. § 1983, and breach of her union contract. Caban alleges that Rafferty, her former supervisor at BMCC, discriminated against her based on her race and national origin and unlawfully retaliated against her. All defendants now move for summary judgment. The motion is denied in part and granted in part.


From 2004 to 2010, Caban was an employee at the BMCC.*fn2 In 2010, she began working as an assistant purchasing agent,*fn3 and in June of that year Rafferty was hired as her immediate supervisor.*fn4 Caban testified at deposition that Rafferty initially treated her kindly and was attentive to her needs.*fn5 However, Caban described a brief, race-related conversation she had with Rafferty shortly after he arrived. When Rafferty heard Caban speaking Spanish, he asked her race and if she was related to a Portugese colleague.*fn6 She responded that she was Puerto Rican and not related to the Portugese colleague.*fn7

Caban testified that after that conversation, Rafferty's behavior toward her changed markedly. Caban and others testified that Rafferty spoke to Caban in an accusatory and agitated manner,*fn8 changed her job description several times,*fn9 deprecated her work quality to supervisors,*fn10 and told other employees not to speak with her.*fn11 Rafferty, however, testified that his conduct was warranted based on Caban's work performance.*fn12 But a co-worker, Raisse Lopez, testified to the timing of Rafferty's more aggressive demeanor: "I guess after he found out she was Puerto Rican, he really didn't care for her too much."*fn13

Caban also described a tense encounter with Rafferty directly after she filed an internal discrimination claim. Rafferty allegedly told her to drop her complaint, called her incompetent "several times," and told her to drop the charges because "[she didn't] want to be involved in 'litigation' with him."*fn14 Rafferty's overall conduct produced an effect upon Caban.*fn15 She described panic attacks, anxiety, and stress.*fn16 Caban eventually applied for, and was transferred to, a similar job at the College of Staten Island, which pays seven thousand dollars less annually.*fn17 After Caban's departure, in November of 2011, Rafferty was terminated because of "[c]oncerns with how [he] relate[d] to [his] subordinates and co-workers" and his behavior during a November 2011 staff meeting.*fn18 On May 19, 2011, Caban filed the instant case.

The Comptroller of the City of New York sent a notice to Caban requesting her appearance for a General Municipal Law 50-h hearing ("50-h Hearing") on June 23, 2011.*fn19 The hearing was subsequently postponed to November 29, 2011.*fn20 Caban did not appear at this hearing. She did, however, comply with the Equal Employment Opportunity Commission ("EEOC") requirements and received a right-to-sue letter on March 31, 2011.*fn21


Summary judgment in defendants' favor is appropriate only if they show "that there is no genuine dispute as to any material fact and [that they are] entitled to judgment as a matter of law."*fn22 "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit."*fn23

Because they are moving for summary judgment, defendants "bear[] the burden of establishing the absence of any genuine issue of material fact."*fn24 To

defeat defendants' motions, plaintiffs "'must do more than simply show that there is some metaphysical doubt as to the material facts,'"*fn25 and "may not rely on conclusory allegations or unsubstantiated speculation."*fn26

In deciding summary judgment motions, courts must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant[s]."*fn27 However, "'[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'"*fn28

"The role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried."*fn29

Summary judgment may be proper even in workplace discrimination cases, which tend to be very fact-intensive, because "the salutary purposes of summary judgment-avoiding protracted, expensive and harassing trials-apply no less to discrimination cases than to other areas of litigation."*fn30 However, greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer's intent is genuinely at issue and circumstantial evidence may reveal an inference of discrimination.*fn31 This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law."*fn32 Nonetheless, "[c]courts within the Second Circuit have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination."*fn33

It is incumbent upon courts to "distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture."*fn34 "[M]ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment."*fn35 Thus, "even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment."*fn36



1. Disparate Treatment Discrimination

Title VII proscribes discrimination against or termination of an individual on the basis of "race, color, religion, sex, or national origin."*fn37 "To withstand a motion for summary judgment, a discrimination plaintiff must withstand the three-part burden-shifting [analysis] laid out by McDonnell Douglas Corp. v. Green."*fn38 "Under this framework a plaintiff must first establish a prima facie case of discrimination."*fn39 To do so, a plaintiff must show: "(1) [s]he is a member of a protected class; (2) [s]he was qualified for the position [s]he held; (3) [s]he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to [an] inference of discrimination" based on her membership in the protected class.*fn40

An adverse employment action is an action by which a plaintiff "has suffered 'a materially adverse change in h[er] employment status' or in the terms and conditions of h[er] employment."*fn41 Examples of adverse employment actions include "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities."*fn42 "To be 'materially adverse' a change in working conditions must be 'more disruptive than a mere inconvenience or an alteration of job responsibilities.'"*fn43 "[A]lthough reprimands and close monitoring may cause an employee embarrassment or anxiety, such intangible consequences are not materially adverse alterations of employment conditions."*fn44

"Courts have held that negative evaluations . . . without any accompanying adverse results, are not cognizable."*fn45 "[B]eing yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments . . . do not rise to the level of adverse employment actions . . . because they [do] not have a material impact on the terms and conditions of . . . employment."*fn46 Courts require actions that are more significant and permanent.*fn47 It is well-established that Title VII "'does not set forth a general civility code for the American workplace.'"*fn48

If plaintiff succeeds in establishing a prima facie case, then the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action.*fn49 Finally, if the employer articulates a non-discriminatory reason for the challenged action, the burden shifts back to the plaintiff to demonstrate that defendants' explanation was pretextual.*fn50

2. Hostile Work Environment

An employee seeking to bring a hostile work environment claim must demonstrate the following: (1) she is a member of a protected class; (2) she suffered unwelcome harassment; (3) she was harassed because of her membership in a protected class; and (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.*fn51

In order to prevail on a hostile work environment claim, a plaintiff must make two showings: (1) that "the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" and (2) that there is a "specific basis for imputing the conduct creating the hostile work environment to the employer."*fn52

Evaluating a hostile environment involves reviewing the totality of the circumstances including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."*fn53

The question is whether a reasonable person would have found the environment to be hostile (objective prong) and if the plaintiff perceived it as such (subjective prong).*fn54 "[A] plaintiff need not show that her hostile working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered her working conditions."*fn55

3. Retaliation

"Title VII also makes it unlawful for an employer to discriminate against an employee 'because [she] has opposed any practice made an unlawful employment practice by this subchapter, or because [she] has made a charge . . . in an investigation, proceeding, or hearing under this subchapter.'"*fn56 To establish a prima facie case of retaliation, plaintiff must show: "(1) that she participated in an activity protected by Title VII, (2) that her participation was known to her employer, (3) that her employer thereafter subjected her to a materially adverse employment action, and (4) that there was a causal connection between the protected activity and the adverse employment action."*fn57 An adverse employment action in the context of a Title VII retaliation claim is an action sufficiently severe to dissuade a reasonable worker from making or supporting a claim of discrimination.*fn58 "Title VII's anti-discrimination and anti-retaliation provisions 'are not coterminous;' anti-retaliation protection is broader and 'extends beyond workplace-related or employment-related retaliatory acts and harm.'"*fn59

"Proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant."*fn60

The three-step McDonnell Douglas burden-shifting analysis also applies to retaliation claims.*fn61 "At the summary judgment stage, if the plaintiff presents at least a minimal amount of evidence to support the elements of the claim, the burden of production shifts to the defendant to proffer a legitimate non-retaliatory reason for the adverse employment action."*fn62 "If the employer produces such evidence, the employee must, in order to avoid summary judgment, point to evidence sufficient to permit an inference that the employer's proffered non-retaliatory reason is pretextual and that retaliation was a 'substantial reason for the adverse employment action.'"*fn63

B. Section 1983

Section 1983 "does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere."*fn64

"The purpose of [section]1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails."*fn65 In order to state a claim under section 1983, a plaintiff must show that the conduct complained of was committed by a person or entity acting under color of state law and that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution.*fn66

For a person deprived of a constitutional right to have recourse against a municipality under section 1983, he or she must show harm that results from an identified municipal "policy," "custom," or "practice."*fn67 In other words, a municipality may not be found liable simply because one of its employees or agents is guilty of some wrongdoing.*fn68 Moreover, a policy, custom, or practice generally cannot arise from a single instance of unconstitutional conduct by an employee of the municipality.*fn69

In the absence of an established written municipal policy, plaintiff must prove that a municipal practice was "so persistent and widespread as to practically have the force of law"*fn70 or that a practice or custom of subordinate employees was "so manifest as to imply the constructive acquiescence of senior policy-making officials."*fn71

C. New York State Human Rights Law

The New York State Human Rights Law ("NYSHRL") provides, in relevant part: "It shall be an unlawful discriminatory practice . . . [f]or an employer . . . because of an individual's age, race . . . national origin . . . [or] sex . . . to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment."*fn72

"The standards for recovery under New York State's Human Rights Law . . . are in accord with Federal standards under [T]itle VII of the Civil Rights Act of 1964."*fn73

In addition, discrimination claims under the NYSHRL and the New York City Human Rights Law (NYCHRL") are subject to the same "burden-shifting framework that the Supreme Court articulated in McDonnell Douglas" for Title VII claims.*fn74 Yet unlike Title VII, liability under the NYSHRL "may be imposed on individuals."*fn75

D. New York City Human Rights Law

The NYCHRL provides, in relevant part, as follows: It shall be an unlawful discriminatory practice . . . [f]or an employer or an employee or agent thereof, because of the actual or perceived age, race . . . national origin, [or] gender [ . . . ] of any person, to [ . . . ] discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.*fn76

"City HRL claims have typically been treated as coextensive with state and federal counterparts. However, the New York City Council has rejected such equivalence."*fn77 By means of the Local Civil Rights Restoration Act of 2005 ("Restoration Act"),*fn78 the City Council "confirm[ed] the legislative intent to abolish 'parallelism' between the City HRL and federal and state anti-discrimination law."*fn79 The NYCHRL must be construed "independently from similar or identical provisions of New York state or federal statutes."*fn80

"Interpretations of New York state or federal statutes with similar wording may be used to aid in interpretation of New York City Human Rights Law, viewing similarly worded provisions of federal and state civil rights laws as a floor below which the City's Human Rights law cannot fall."*fn81 "'As a result of [the Restoration Act], the City HRL now explicitly requires an independent liberal construction analysis in all circumstances, even where state and federal civil rights laws have comparable language.'"*fn82 In stating a retaliation claim under NYCHRL, plaintiff need not establish that an adverse employment action was materially adverse. She need only establish that the action was "reasonably likely to deter a person from engaging in a protected activity."*fn83

E. Qualified Immunity

The doctrine of qualified immunity "shields federal and state officials from money damages unless a plaintiff [can show] (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct."*fn84 It is "a defense afforded only to individuals -- not municipalities or municipal agencies."*fn85 "[A]n official sued in his official capacity may not take advantage of a qualified immunity defense."*fn86

There are three steps in a qualified immunity analysis. The court first must determine whether, "taken in the light most favorable to the party asserting the injury . . . the officer's conduct violated a constitutional right . . . ."*fn87 Next, the court asks whether or not, at the time of the violation, the law prohibiting the conduct in question was clearly established.*fn88 "Clearly established" means: "(1) the law is defined with reasonable clarity, (2) the Supreme Court or Second Circuit has recognized the right, and (3) 'a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful.'"*fn89 If the law prohibiting defendant's conduct was clearly established, the court moves to the final step in the analysis, which asks whether or not "'it was objectively reasonable for [the defendant] to believe that his actions were lawful at the time of the challenged act.'"*fn90 An official's conduct is objectively unreasonable, and not eligible for qualified immunity, "when no officer of reasonable competence could have made the same choice in similar circumstances."*fn91

Qualified immunity under New York common law is similar, "grant[ing] government officials qualified immunity in state-law claims except where the officials' actions are undertaken in bad faith or without a reasonable basis."*fn92 To be entitled to qualified immunity under state law, it must be "objectively reasonable for the [government officers] involved to believe that their conduct was appropriate under the circumstances, or that officers of reasonable competence would disagree as to whether their conduct was proper."*fn93

Accord Ashcroft, 131 S. Ct. at 2083.


A. Claims Against the City of New York Are Dismissed

Plaintiff concedes that her claims against the City of New York are "not supportable."*fn94 All claims against the City of New York are dismissed with prejudice.

B. Federal Law Claims

1. Title VII Claim Against Rafferty

Plaintiff concedes that the Title VII claim against Rafferty is "not supportable."*fn95 This claim is dismissed with prejudice.

2. Title VII Claims Against CUNY

a. Disparate Treatment

Caban has proffered sufficient evidence to create a material issue of fact on all four of the McDonnell-Douglas unlawful discrimination prongs.*fn96 First, defendants do not contest Caban's assertion that she is Puerto Rican and that

Hispanics are a protected class under Title VII. Second, there is a genuine issue of material fact as to whether Caban was performing her job satisfactorily. Facts tending to show satisfactory job performance include her prior upward career trajectory at CUNY,*fn97 her positive job evaluations,*fn98 and positive comments from her colleagues about her work.*fn99 Testimony critical of Caban's work product comes almost exclusively from Rafferty. The quality of Caban's job performance presents a material issue of fact to be determined by the finder of fact.

Third, there is a genuine issue of material fact as to whether Caban suffered an adverse employment action. Plaintiff and defendants cite conflicting deposition testimony describing the extent to which Caban's job duties changed and the extent of Rafferty's involvement.*fn100 Elena Samuels, Assistant to the Vice President of Finance, testified that Rafferty was heavily involved in increasing Caban's job duties.*fn101 Samuels stated that Rafferty asked us to change [the job description]. So we made the changes. And they were going back and forth several times. . . . But I remember he complained many times that he didn't like it, and it should be different, so we reworked it several times.*fn102

Samuels then described how Rafferty "asked us to make it more gentle on [Caban's successor Patricia Ashford]."*fn103 Examined in light of Rafferty's other conduct toward Caban, a reasonable jury could conclude that the change in job description was intended to make Caban's job more difficult and encourage her to seek other employment. And based on Caban's departure, it appears that this tactic was successful.

Fourth, the circumstances surrounding Rafferty's behavior give rise to an inference of discrimination, and a reasonable juror could find that discriminatory intent underpinned Rafferty's behavior. Caban describes how Rafferty stopped in his tracks when he heard her speaking Spanish,*fn104 immediately thereafter emailed Caban asking whether she was related to Wally Caban (who Rafferty believed was Portugese),*fn105 and then asked Caban her race.*fn106 It was at that time that Caban noticed the change in Rafferty's behavior.*fn107 And while a plaintiff's own testimony can be sufficient, at least one other employee also noticed that Rafferty's behavior toward Caban changed after this incident.*fn108

Given these facts, there is a genuine issue as to whether Rafferty's behavior was motivated by discriminatory intent.*fn109 Accordingly, Caban's Title VII claim against CUNY based on disparate treatment may proceed.

b. Hostile Work Environment

A Title VII claimant may prove an adverse employment action by either showing direct discrimination or by demonstrating a hostile work environment.*fn110 I now briefly review the facts that allow Caban to proceed on a hostile work environment claim.

When examining whether a hostile workplace exists, courts must consider the totality of the circumstances, including a reasonable person's view (the objective prong) as well as the victim's subjective perspective.*fn111 If Caban's work performance was satisfactory -- which remains a disputed issue of fact -- then Rafferty's work-related criticisms, job description modifications, negative comments to Caban's superiors, and aggressive demeanor were arguably unjustified. They substantially changed Caban's work environment and certainly amounted to more than the mere "isolated remarks or occasional episodes" that courts have found to be insufficient.*fn112 Lopez also noticed Rafferty's continued demeaning conduct toward Caban.*fn113 As a result of this, Caban testified that she suffered from depression, panic attacks, and anxiety, with the last condition verified by her treating physician.*fn114 The facts -- from both an objective and subjective viewpoint -- could support a finding that Rafferty's conduct was sufficiently pervasive and sustained as to create a hostile work environment.

c. Employer Liability

Conduct creating a hostile work environment must be imputed to the employer in order to find employer liability.*fn115 "[A]n employer will be liable if the supervisor uses 'his actual or apparent authority to further the harassment, or if [the supervisor] was otherwise aided in accomplishing the harassment by the existence of the agency relationship.'"*fn116 In addition to speaking loudly and aggressively, Rafferty's other actions toward Caban all involved the use of his authority as a supervisor: including his modification of her job description, his order for her not to speak to any other supervisors or administrators, and his critical evaluation of her work to her superiors. Because Rafferty was the "highest" supervisor on the building and grounds department hierarchy,*fn117 his actions toward Caban involved apparent or actual use of his position and authority. Thus, Caban's Title VII claim against CUNY based on a hostile work environment may proceed.

d. Retaliation Claim

Caban has produced sufficient facts to make out a prima facie case for unlawful retaliation under Title VII.*fn118 First, her complaint regarding Rafferty's behavior was a protected activity under Title VII. Second, Rafferty's repeated demands that she withdraw her complaint demonstrate that he knew about it.*fn119

Third, testimony from Caban and Samuels creates a genuine issue of fact as to whether Caban suffered an adverse employment action. Caban testified about changes in her job duties and workload following her complaint, in addition to Rafferty's multiple requests for her to withdraw the complaint.*fn120 Samuels testified about Rafferty's role in changing Caban's job description, although she was not specific as to the nature of the changes or the timing.*fn121 Fourth, Rafferty's

behavior after learning of Caban's complaint gives rise to the inference that there is a causal connection between Caban's complaint and Rafferty's actions toward her. After learning of Caban's complaint, Rafferty called her into his office, told her to drop the complaint, and criticized her work.*fn122 According to Caban, this conversation occurred shortly before Columbus Day weekend of 2010.*fn123 Rafferty also gave Caban an additional page of her new job description shortly before that weekend.*fn124 Rafferty's repeated requests for Caban to withdraw her complaint, coupled with the timing of his job description modifications, create a genuine issue of fact as to the retaliation claim that cannot be resolved at the summary judgment stage. Thus, Caban's Title VII claim against CUNY based on retaliation may proceed.

3. Section 1983 Claim

Plaintiff neither alleges specific facts nor provides admissible evidence of a racially discriminatory policy or practice at CUNY. Plaintiff also fails to allege an underlying constitutional violation. Based on the absence of a constitutional violation by a state actor, no reasonable juror could find the existence of the type of widespread practice needed to impose liability under section 1983.*fn125 Summary judgment therefore is granted on Caban's section 1983 claim.

C. City and State Law Claims

1. Caban's Failure to Appear at Her 50-h Hearing Requires Dismissal of City and State Discrimination Claims Against CUNY Caban failed to appear at her November 29, 2011 50-h hearing.*fn126

Absent good cause for her failure to attend, the city and state law claims against CUNY must be dismissed.*fn127

Plaintiff argues that the New York State Comptroller must demand a 50-h examination for employees of community colleges and that the New York City Comptroller's letter was therefore insufficient.*fn128 However, section 6224(1) of the Education Law explicitly states that the section 6224 provisions requiring a state comptroller demand do not apply to community colleges of CUNY.*fn129

Moreover, "claims against the community colleges of CUNY are governed by §§ 50--e & 50--i of New York's General Municipal Law, suggesting that the municipality of the City of New York is responsible for paying any judgments rendered against CUNY's community colleges."*fn130 This relationship between CUNY and the City makes the City Comptroller's 50-h hearing request a sufficient demand on behalf of CUNY and BMCC. Furthermore, no section of the 50-h hearing demand letter indicated that it applied only to Caban's claims against the City of New York.*fn131

Caban has not asserted any good cause for missing her 50-h hearing.*fn132 As a result, her NYCHRL and NYSHRL claims against CUNY -- and against Rafferty in his official capacity -- are dismissed.*fn133

2. City and State Discrimination Claims May Proceed Against Rafferty in His Individual Capacity The claim and examination rights in section 50-e and 50-h belong to CUNY.*fn134 Therefore, failure to comply with section 50-h does not preclude claims against Rafferty in his individual capacity.

3. Rafferty Is Not Entitled to Qualified Immunity

Examining the facts in the light most favorable to the plaintiff, a reasonable juror could find that Rafferty changed his behavior towards Caban, including the modification of the job description, based on his discovery that she was Puerto Rican. A reasonable person in Rafferty's position would have known that changing Caban's job description, criticizing her work to superiors, and addressing her in an aggressive and demeaning manner -- all because of her race -- violated her rights under both the city and state human rights laws. While a jury must decide whether such behavior actually occurred and was motivated by race, there is no question that a reasonable person would have known that such conduct is statutorily proscribed.

4. Breach of Contract Claim

In order for plaintiff to bring a breach of a union contract cause of action against her employer, plaintiff must demonstrate that the union breached its duty of fair representation to the plaintiff employee.*fn135 Not only is there no evidence demonstrating any breach of the duty of fair representation, but Caban does not even allege such a breach. The breach of contract claim is dismissed with prejudice.


For the foregoing reasons, defendants' motion is granted as to all claims against the City of New York, as well as claim one (breach of contract), claim two against CUNY (NYCHRL), claim three against CUNY (NYSHRL), claim four against Rafferty (Title VII0, and claim five (section 1983). The motion is denied for claim four (Title VII) against CUNY and claims two and three (NYSHRL and NYCHRL) against Rafferty in his personal capacity. The Clerk of the Court is directed to close this motion [Docket No. 14]. A conference is scheduled for December 10, 2012 at 4:30 p.m.


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