United States District Court, S.D. New York
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For Genette Colon, Elvimar Rivas, Plaintiffs: Jimmy Miguel Santos, LEAD ATTORNEY, Law Offices of Jimmy M. Santos, Pllc, New York, NY.
For Fashion Institute of Technology (State University of New York), Laura Solomon, in her corporate capacity as FIT's A VP for Human Resources & Labor Relations, Laura Solomon, in her individual capacity, Colette Wong, in her corporate capacity as Chair of FIT's Fashion Design Dept, Colette Wong, in her individual capacity, Linda Muglia, in her corporate capacity as Supervisor of FIT's Fabric/Finding Room, Linda Muglia, in her individual capacity, Carmela Speranza, in her corporate capacity as Administrative Associate at FIT, Carmela Speranza, in her individual capacity, Defendants: Bertrand B. Pogrebin, Emily Chaloner Haan, Joshua Daniel Kiman, Littler Mendelson, P.C. (NYC), New York, NY.
OPINION & ORDER
Hon. Harold Baer, Jr., U.S.D.J.
The motions catalogued below are all brought by the Defendants and all seek summary judgment. Plaintiffs Genette Colon and Elvimar Rivas bring racial and pregnancy discrimination claims, as well as retaliation claims, against their former employer, the Fashion Institute of Technology (" FIT" ). Colon brings claims for interference and retaliation in violation of the Family Medical Leave Act (" FMLA" ), and discriminatory treatment and retaliation under 42 U.S.C. § 1981. Colon also brings claims against Defendants Laura Solomon, Linda Muglia, and Carmela Speranza for retaliation under 42 U.S.C. § 1981. Rivas brings claims for discrimination on the basis of pregnancy, discriminatory discharge and hostile work environment under the New York City Human Rights Law (" NYCHRL" ). Rivas also brings a claim for hostile work environment under 42 U.S.C. § 1981, and claims against Defendants Colette Wong and Carmela Speranza under the NYCHRL and 42 U.S.C. § 1981. For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in part.
A. Plaintiff Genette Colon
Plaintiff Genette Colon is a Hispanic woman. She was hired by Defendant FIT as a student aide in 1997 to work in the fabric lab in the Fashion Design Department. (Defs.' 56.1 ¶ 1.) In 1999, Colon was promoted to a position as a part-time employee in the fabric room. ( Id. at ¶ ¶ 2, 3.) In 2002, Colon was promoted to a full time position, and in 2005, she was granted tenure at FIT. ( Id. at ¶ ¶ 4, 5.) Colon alleges that on one occasion in 2008 Defendant Linda Muglia (" Muglia" ), the Supervisor of FIT's Fabric/Finding Room, referred to her as a " spic" while she criticized her work. (Defs.' 56.1 ¶ 38; Colon Dep. 127-28.) Colon complained to her union representative Maria Zervos about the comment. (Defs.' 56.1 ¶ 39; Colon Dep. 165.)
On August 18, 2008, August 22, 2008, September 9, 2008, December 1, 2009, March 4, 2010 and May 16, 2011 Colon received memoranda from Defendant Colette Wong (" Wong" ), Chair of the Fashion Design Department, addressing Colon's unacceptable tardiness, absences and misuse of sick days. (Pogrebin Dec. Exs. F, G, H, I, J, K.) During May 2011, Colon was denied a request for three vacation days, though she was granted the other
vacation she requested that summer. (Pogebrin Dec. Ex. T; Defs.' 56.1 ¶ ¶ 40, 41; Colon Dep. 137-38.)
On August 22, 2011, Wong sent an email to members of the FIT Human Resources Department (" HR" ) requesting that charges be brought against Colon and another employee, Angelo Totenda (" Totenda" ). (Wong Dec. ¶ 5, Ex. A; Defs.' 56.1 ¶ 53, 54, 55.) Defendant Solomon (" Solomon" ), the Assistant Vice President for Human Resources and Labor Relations at FIT, testified that she began processing this request on August 25. (Solomon Dec. ¶ 4.) During October 2011, Colon tore the ACL in her left knee. (Colon. Aff. ¶ ¶ 39, 40, Ex. 12.) Colon received two notes from a chiropractor about her condition, dated October 18 and October 20, both of which she gave to her supervisors. ( Id.) Also during October, and after receiving these notes, Muglia took away Colon's keys, which made it more difficult for Colon to use the restroom. (Colon Aff. ¶ 42.) On another occasion, Muglia insisted Colon look for a mannequin for a student, despite her knee injury. ( Id.)Colon informed her union representative of this treatment. ( Id. at ¶ 43.)
On November 1, 2011, Colon picked up paperwork from HR to apply for FMLA leave for her knee surgery. ( Id. at ¶ 44.) At some point between that date and November 7, Colon informed Johanny Taveras, an HR employee, about Muglia's taking the restroom keys and her insistence that she get the mannequin. ( Id.) On November 3, 2011, Colon's surgeon faxed the required FLMA leave forms to FIT, indicating that Colon would need leave for surgery and recovery from November 30, 2011 to January 10, 2012. (Colon Aff. Ex. 13.) On November 7, 2011, FIT preferred disciplinary charges against Colon and suspended her employment. (Solomon Dec. ¶ 5; Colon Aff. Ex. 16.) On November 8, 2011, Colon complained of discrimination to Griselda Gonzalez, FIT's affirmative action officer, stating that she had been discriminated against because she had requested FMLA leave. (Defs.' 56.1 ¶ 49; Gonzalez Dec. ¶ 3.) Gonzalez found that Colon's complaint was unsupported. (Gonzalez Dec. ¶ 4.) After Gonzalez informed Colon of her findings, Colon complained to Gonzalez that she had been treated poorly because of her race. ( Id. at ¶ 5.)
Pursuant to the collective bargaining agreement between Colon's union, the United College Employees of FIT, Local 3457 (" Union" ) and FIT, Colon's disciplinary charges as a tenured employee were referred to a Disciplinary Committee made up of one designee of the FIT administration and one designee from the Union to investigate the charges and make a recommendation to the President of FIT. (Solomon Dec. ¶ 5.) This committee recommended Colon's termination. ( Id.) On February 1, 2012, Colon was suspended without pay pending a disciplinary hearing, pursuant to the collective bargaining agreement. ( Id.) An arbitrator conducted disciplinary hearings on September 5, November 14 and December 11, 2012, and subsequently recommended Colon's termination, finding139 instances of lateness and 63 absences in almost five years. ( Id. at ¶ ¶ 7, 8; Pogrebin Dec. Ex. P 11.) During the disciplinary hearings, Colon was represented by counsel, witnesses testified under oath and were cross examined, but Colon complained that she was not able to call certain co-workers to testify. (Defs.' 56.1 ¶ 25; Pls.' 56.1 ¶ 25'; Colon Aff. Ex. 15). On June 5, 2013, the FIT Board of Trustees adopted the arbitrator's recommendation and terminated Colon. (Solomon Dec. ¶ 8.)
B. Plaintiff Elvimar Rivas
Plaintiff Elvimar Rivas is a Hispanic woman. In 2007, Defendant FIT hired her as a temporary secretary in the Fashion Design Department. (Defs.' 56.1 ¶ 56).
In 2008, Rivas was promoted to a permanent position, but remained untenured. (Defs.' 56.1 ¶ ¶ 57, 59). Throughout Rivas's employment, FIT identified instances of absence and tardiness in Rivas's performance reviews (Defs.' 56.1 ¶ ¶ 62, 64, 66, 68, 93; Pogrebin Dec. Exs. V, W, X, Y, BB, CC, DD).
During her time at FIT, Rivas felt that she was criticized for making phone calls and sending text messages during the day. (Defs.' 56.1 ¶ 70.) Rivas also had her pay docked when she was a few minutes late to work, was required to call Speranza, an Administrative Associate in the Fashion Design Department who supervised Colon, to report her arrival time each day for two months in 2009, and had to move her desk to directly face Speranza. (Defs.' 56.1 ¶ ¶ 79, 82, 83). In January 2010, Solomon, an HR Vice President, wrote an email advising Speranza to terminate Rivas because of her tardiness. (Defs.' 56.1 ¶ 85; Solomon Dec. ¶ 9.) In March 2010, Solomon sent emails to another member of HR, and to Speranza and Wong, " recommending [Rivas's] termination on the basis of lateness." (Defs.' 56.1 ¶ ¶ 86, 87; Solomon Dec. ¶ ¶ 10, 11.)
Rivas informed Wong in writing that she was pregnant on May 4, 2010. (Pls.' 56.1 ¶ ¶ 89, 164; Rivas Aff. ¶ ¶ 18, 20, Ex. 3.) Rivas states that she verbally informed Wong of her pregnancy approximately one week before the written notification, and complained that Wong asked whether her boyfriend would be able to take care of her during her pregnancy, and did not congratulate her. (Pls.' 56.1 ¶ 89; Rivas Aff. ¶ 17; Defs.' 56.1 ¶ 92.) Wong emailed an HR employee on May 14 informing him that she planned to terminate Rivas's employment the week of May 24; however, upon consultation with HR, Wong was advised to postpone the termination. (Defs.' 56.1 ¶ 88, 89.) Rivas also alleges that, after she informed Wong of her pregnancy, Speranza and Wong ignored her, ...