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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 ...

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