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Greta E. Mosley v. City of Rochester and Joseph Mustico

December 17, 2012


The opinion of the court was delivered by: Hon. Michael A. Telesca United States District Judge



Plaintiff, Greta E. Mosley ("Plaintiff"), brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), 42 U.S.C. Section 1981 ("§ 1981"), and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"), alleging retaliation after she complained to her supervisor, defendant Joseph Mustico ("Mustico"), of racial discrimination while employed by the City of Rochester ("the City"). The City and Mustico (collectively, "Defendants") now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), contending that Plaintiff has not produced sufficient evidence to support her claims of retaliation. Plaintiff opposes the motion arguing that she has presented sufficient evidence of a prima facie case of retaliation and that the Defendants' proffered reasons for their actions are a pretext for discriminatory retaliation.

After reviewing the entire record, the Court finds that Plaintiff has not satisfied her burden of producing sufficient evidence of discriminatory retaliation such that a reasonable jury could find in her favor. Accordingly, for the reasons discussed herein, Defendants' motion for summary judgment is granted and the Plaintiff's complaint is dismissed with prejudice.


The following facts are taken from the parties' submissions pursuant to Local Rule 56 (a) and the exhibits attached thereto. (Docket Nos. 22, 26.) Plaintiff, an African American, was employed by the City in numerous positions for approximately twenty three years until she was laid off from her position as a Senior Administrative Analyst ("SAA") in the Commissioner's Office of the Department of Community Development ("DCD") on June 30, 2009. Prior to that date, Plaintiff had a relatively successful career with the City receiving multiple pay raises and many good evaluations. Since her lay off in June 2009, Plaintiff worked for the City in a temporary capacity for eight or nine months in 2011.

While Plaintiff was employed in the DCD, from 2006 through June 2009, her supervisor was defendant Mustico, a Caucasian male. The head of the DCD was Julio Vasquez, an Hispanic male. Plaintiff worked with Mustico, Vasquez and four clerks, three of whom were also African American females.

From 2006 through 2007, Plaintiff was responsible for organizing departmental regulatory records into a working log. Plaintiff received a commendation from Mustico for her work in this regard. She also received a salary increase. During 2007 and 2008, Plaintiff was tasked with additional assignments, including performing National Environmental Protection Act compliance reviews and drafting legislative proposals for departmental projects. She was solely responsible for many of these new tasks and she was expected to work independently.

Plaintiff complains that other employees did not encounter such work increases and that Mustico failed to train her to adequately perform her new responsibilities. The record, however, is devoid of any facts regarding the work load or training of any other employee of any race. The record also does not contain any evidence regarding the training responsibilities of supervisors like Mustico, and Plaintiff did not witness Mustico providing training to other employees. The record reveals that, in certain cases, Plaintiff was directed to consult manuals or to seek out advice from other departments. Also, for certain tasks, she worked with a group of employees who assisted one another in completing and understanding the assigned tasks. However, she complains that Mustico was generally unavailable to her and unresponsive to her requests for additional training.

Plaintiff also complains that during her time at the DCD, she was excluded from certain meetings and not given an office that she requested. Other than Plaintiff's statement that she was excluded, the record does not contain any evidence regarding any DCD meetings and Plaintiff admits that the office space she requested was converted into a conference room. There is no evidence to support her allegations that she was treated differently than other employee of any race with respect to either the office or the alleged meetings.

During her 2007-2008 Performance review at the end of 2008, Mustico stated that Plaintiff "does not have good knowledge of our proposed agenda items" and that she "requires a high level of supervision." He also stated that "she brings issues to my attention expecting a resolution rather than resolving the issue herself." In other areas of the evaluation, Plaintiff met expectations. He stated that Plaintiff and he were working on a performance improvement plan, but a formal plan was not implemented prior to Plaintiff's lay off. Despite this performance review, Mustico recommended a salary increase in January 2009. Plaintiff alleges that shortly after this review, on or around January 6, 2009, she complained to Mustico of discrimination based on his treatment of her during her time at the DCD.

At some point during the 2008-2009 fiscal year, Rochester Mayor Robert Duffy requested that the heads of three different City departments, including the DCD, develop a consolidation plan for the 2009-2010 budget year. The department heads, Julio Vasquez, Carlos Carballada and Molly Clifford, were tasked with eliminating job functions and/or positions that were duplicative or overlapping within the three departments. The department heads created a subcommittee of 13 City employees, including Joe Mustico, who were asked to give recommendations to the department heads regarding the consolidation process. A representative from the City's human resources department also sat on the subcommittee to ensure that local, state, and federal labor laws and seniority rules were followed during the process.

As a result of this consolidation effort, thirteen employees across the three departments were either laid off or their positions were eliminated. Employees were given advance notice that the consolidation was occurring and that their positions were in danger of being eliminated, and they were encouraged to seek out other positions in the City. All employees who were laid off were placed on a "preferred list," which gave them preference in hiring for any position that became available at their current pay level or below. The City generally conducts annual lay offs and affected employees are offered positions at lower pay levels to retain employment.

Plaintiff's position as an SAA at the DCD was eliminated and she was laid off on June 30, 2009. She was notified that her position was subject to a possible elimination in March of 2009. There were two other SAA's across the three departments, one had more seniority than Plaintiff and the other, Laura ...

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