The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiff Elizabeth Danials-Kirisits commenced this action in November 2005 alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and New York State Human Rights Law, N.Y. Executive Law §§ 290 et seq.by her employer, Defendant New York State Office of Court Administration. Presently before the Court is Defendant's Motion for Summary Judgment dismissing the Second Amended Complaint. For the reasons discussed below, this Court finds the matter fully briefed and oral argument unnecessary, and concludes that Defendant's motion should be granted.
Plaintiff was employed by Defendant in Buffalo City Court from approximately 1977 until her termination in December 2005. (Decl. of Plaintiff Elizabeth Danials-Kirisits ¶¶ 18, 124, Docket No. 117; Decl. of Marie Villari ¶¶ 4-5, Docket No. 99.) Following her complaints to Defendant's gender bias committee and the New York State Division of Human Rights, Plaintiff was interviewed in 1990 by the New York State Commission on Judicial Conduct regarding sexual harassment by then-Judge Anthony LoRusso. (Pl's Decl. ¶¶ 22-25.) After LoRusso was formally removed from his position in 1992, Plaintiff commenced an action in this Court alleging discrimination on the basis of sex and retaliatory treatment by Defendant and former Judge LoRusso. (Id. ¶¶ 27-30.) That action was settled in 1997. (Id. ¶ 31.) In the present action, Plaintiff alleges, among other things, that the discriminatory and retaliatory treatment continued after the settlement of the district court action.(Id. ¶ 32.)
Among Plaintiff's allegations are assertions that she was twice passed over for promotion to Deputy Chief Clerk, once in 1999 and again in 2003, in retaliation for her complaints against LoRusso. (Id. ¶¶ 36-44; 58-65.) The first person who was promoted over Plaintiff in 1999 was a woman who had also testified against LoRusso in 1990. (Id. ¶¶ 25-26, 44; Pl's Dep at 80-81, Docket No. 116-2.) Further, the Chief Clerk in both 1999 and 2003 also testified against LoRusso. (Pl's Decl. ¶¶ 26, 38-43; Decl. of Sharon Thomas ¶¶ 2-4, 53-54, Docket No. 108.) Plaintiff nonetheless alleges that Kim Delmont, who was promoted to Deputy Chief Clerk over her in 2003, "engaged in a campaign to isolate, ostracize, undermine, discredit, and ultimately discharge [Plaintiff] from employment, because of [her] complaints of and opposition to ongoing and continued harassment, discrimination and retaliation by [Defendant], and retaliation for [her] complaints against former Judge LoRusso." (Pl's Decl. ¶¶ 59-66.) It is Plaintiff's belief that Delmont is a protege of a close friend of Judge LoRusso. (Id. ¶ 64.)
Plaintiff alleges that, in February 2005, "Delmont created false documentation of unfounded allegations of poor performance by me over an eighteen month period, which she then used to prepare and present at a performance evaluation." (Pl's Decl. ¶ 94.) The parties agree that this is the only negative evaluation Plaintiff received in the years following the LoRusso complaint, and that Plaintiff has received satisfactory evaluations since her first formal evaluation in January 1994. (Pl's Decl. ¶ 99; Villari Decl. ¶¶ 6-16.) What is in dispute is Plaintiff's reaction to this February 2005 evaluation. Defendant asserts that Plaintiff was interruptive during the evaluation meeting and abruptly left prior to its conclusion, only to be later witnessed using excessive profanity and otherwise acting inappropriately in public areas of the court. (Decl. of Andrew B. Isenberg ¶¶ 6-7 Ex. A, Docket No. 98; Transcript of Pl's September 2005 Disciplinary Hearing ("Hrg Tr") at 13-20, 63-65, Decl. of John J. Sullivan, Esq., Ex. C, Docket No. 100.) Plaintiff vehemently denies yelling, raising her voice, or using profanity, and asserts that others were ill-behaved toward her at that time. (Pl's Decl. ¶¶ 99-107.) Plaintiff was suspended with pay four days later. (Pl's Decl. ¶ 111; Isenberg Decl. ¶¶ 11-12 Ex. B.)
Plaintiff filed a Charge of Discrimination with the New York State Division of Human Rights and the Equal Employment Opportunity Commission ("EEOC") in April 2005 alleging that the unsatisfactory performance evaluation and suspension were in retaliation for her having filed the prior discrimination charge against LoRusso in 1990. (Decl. of Kathleen Kaczor, Esq. Ex. C, Docket No. 110.; Pl's Decl. ¶ 5 .) That charge was amended in May 2005 to reflect the correct address for Defendant. (Pl's Decl. ¶¶ 6-7; Kaczor Decl. Ex. C.)
In June 2005, Plaintiff was given notice and specification of the charges against her, as required by the governing collective bargaining agreement. (Sullivan Decl. ¶ 4, Ex. A.) Specifically, Plaintiff was charged with inappropriate and insubordinate behavior based on her conduct on February 18, 2005; failure to properly update a "quarterly DMV scofflaw report;" failure to appropriately update a computer database; insubordination based on a refusal to reschedule four weeks of criminal cases in May 2004; and violation of Defendant's internet usage policy from May 2004 to February 2005. (Sullivan Decl. ¶ 5, Ex. A.) A hearing was held in September 2005 before a hearing officer from a different judicial district, at which Plaintiff was represented by counsel and both sides presented witnesses. (Id. ¶ 7-11, Ex. C.) The hearing officer sustained all charges with the exception of the allegation of direct subordination related to Plaintiff's failure to reschedule. (Id. Ex. F.) The hearing officer recommended that Plaintiff be terminated as a result. (Id. Ex. F at 19, Docket Nos. 106-7.) This report and recommendation was then reviewed by the Honorable Jan H. Plumadore, Deputy Chief Administrative Judge for Courts Outside New York City and accepted on November 28, 2005. (Isenberg Decl. Ex. C.) Plaintiff was terminated from her position effective December 2, 2005. (Id.; Pl's Decl. ¶ 124.)
In January 2006, Plaintiff filed an additional EEOC charge alleging that she was improperly terminated in retaliation for her prior complaints of employment discrimination. (Kaczor Decl. Ex. D.) The EEOC determined that there was insufficient evidence that a violation had occurred, and issued Plaintiff a right to sue letter on August 11, 2005. (Id. Ex. E.) Plaintiff commenced the instant action in this Court on November 7, 2005.
Summary judgment is appropriate, even in a discrimination case, "where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), cert denied, 540 U.S. 811 (2003). A court's function on a summary judgment motion "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor, 609 F.3d at 545. "A dispute regarding a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Weinstock, 224 F.3d at 41 (quotingAnderson, 477 U.S. at 248). Further, a court 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." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).
Defendant correctly contends that Plaintiff's second and fourth causes of action, which allege violations of New York State Human Rights Law ("NYSHRL") based on gender discrimination, age discrimination,*fn1 and improper retaliation, must be dismissed for lack of subject matter jurisdiction. (Def's Mem of Law at 3-4, Docket No. 112.) "[A]s a general rule, state governments [and their agencies] may not be sued in federal court unless they have waived their Eleventh Amendment immunity" or there has been a valid abrogation of that immunity by Congress. Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir.2006) (citing Lapides v. Bd. of Regents, 535 U.S. 613, 618-19, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002)); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S. Ct. 900, 79 L. Ed. 67 (1984). Defendant is an administrative arm of the judicial branch of the New York state government, and it is therefore immune from suit in federal court for alleged violations of ...