United States District Court, S.D. New York
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge.
Plaintiff Sherry Grant, who was employed as a Residence Program Specialist ("RP Specialist") with Defendant United Cerebral Palsy of New York City, Inc. ("UCP"), brings this action for employment discrimination on the basis of her sex against defendants UCP, Kevin Cameron, Everett Watts and Yurella Lopez.
The Complaint alleges disparate treatment, hostile work environment and retaliation. Plaintiff asserts claims based on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII") against Defendant UCP. Plaintiff asserts claims based on the New York State Human Rights Law, New York Executive Law §§ 290 et seq. (the "NYSHRL"), and the New York City Human Rights Law and New York Administrative Code §§ 8-101 et seq. (the "NYCHRL") against all Defendants.
Plaintiff moves for partial summary judgment on the issue that UCP discriminated against her on the basis of her sex, in violation of NYSHRL and NYCHRL, through UCP's policy and/or practice of assigning Plaintiff and other female RP Specialists to provide intimate care for consumers of the opposite sex, while not assigning male RP Specialists to provide intimate care for consumers of the opposite sex. For the reasons discussed below, Plaintiff's motion is denied.
Defendants move for summary judgment dismissing Plaintiff's complaint in its entirety. For the reasons discussed below, Defendants' motion is granted.
The following facts are drawn from the parties' submissions in connection with the instant motions and are construed in the light most favorable to the non-moving party.
A. The Parties
Plaintiff was employed by Defendant UCP as an RP Specialist from 2000 to 2011. Defendant UCP is a not-for-profit agency, which provides full time care for individuals with developmental disabilities. These "consumers" live in apartments in UCP-managed residences located throughout New York City. Each residence is staffed by RP Specialists, who provide direct care to the consumers.
Plaintiff worked at a UCP residence known as the "Landings, " located in Brooklyn. Defendant Cameron supervised Plaintiff at the Landings where he was the Program Director from November 2006 to July 2008. He was replaced by his friend Defendant Watts, who was the Program Director there from November 2008 to 2012. Another of Plaintiff's supervisors was Defendant Lopez, who was the Residence Manager at the Landings from November 2007 to April 2011.
B. The Kelly-Braithwaite Incident
Marilyn Kelly-Braithwaite was another RP Specialist employed by UCP, whom Defendant Cameron promoted in 2007 from an on-call RP Specialist position to a 30-hour RP Specialist position. Defendant Cameron did not interview anyone other than Kelly-Braithwaite for that position. Plaintiff, who had expressed interest in the position, felt that she was more qualified than Kelly-Braithwaite, as Kelly-Braithwaite had been employed with UCP for only a few months, while Plaintiff had been employed with UCP for seven years. When Plaintiff confronted Defendant Cameron at a staff meeting about the situation, he removed Kelly-Braithwaite from and hired Plaintiff to the position. Plaintiff alleges that Defendant Cameron and Kelly-Braithwaite were involved in a sexual relationship.
C. Informal Complaint
In June 2008, Plaintiff confronted Defendant Cameron at one or more meetings regarding his alleged disrespectful treatment of women, asking him why he spoke to females differently than he spoke to males ("Informal Complaint").
D. The Transfer
On July 15, 2009, UCP transferred Plaintiff from the UCP residence at which she was working to another UCP residence (the "Transfer"). Plaintiff was replaced at her original location by a female RP Specialist. Defendants maintain that the Transfer affected only minimally, if at all, the terms and conditions of Plaintiffs employment, as she continued to work an identical schedule, received no reduction in salary or benefits, continued to work under the same management, and continued to perform essentially the same duties. Plaintiff claims that, following the Transfer, her workload increased and she was subjected to excessive scrutiny.
Defendants maintain that the Transfer was necessary because one of the consumers, referred to as "VS, " complained about Plaintiff and requested that she no longer provide care for VS. Defendants maintain that they investigated VS's complaints, but that ultimately there was no way to substantiate the allegations, so no disciplinary action was taken against Plaintiff. Plaintiff denies the allegations reportedly made by VS and maintains that none of the consumers for whom she cared ever voiced any problems to her about her job performance.
E. Disproportionately Heavy Workload and Excessive Scrutiny
Plaintiff claims that after the Transfer, she was subjected to a heavier workload and excessive scrutiny. Plaintiff claims that Defendant Lopez and Defendant Watts assigned Plaintiff, more often than they did other RP Specialists, to care for consumers who had the greatest needs and who were the most medically fragile. Also, there was a greater supervisory presence at the location where Plaintiff was transferred compared with her prior location.
F. First Formal Complaint
On August 28, 2009, Plaintiff filed a complaint with the New York State Human Rights Division ("NYSDHR") and the Equal Employment Opportunity Commission ("EEOC") ("First Formal Complaint"). Specifically, the First Formal Complaint mentioned the Transfer and the fact that Plaintiff allegedly was treated unfairly in comparison to Kelly-Braithwaite. UCP filed a response to the First Formal Complaint on October 21, 2009.
On January 1, 2010, Plaintiff's attorney sent a letter to the NYSDHR detailing Plaintiff's grievances. On January 6, 2010, the NYSDHR responded by letter to Plaintiff's attorney, instructing her that since the letter of January 1, 2010 set forth allegations that were not included in the First Formal Complaint, Plaintiff would need to file a new complaint in order for those new allegations to be investigated, which Plaintiff later did, as discussed below.
G. Disciplinary Actions
UCP has a progressive discipline policy consisting of first, second and third written warnings, then termination or administrative leave. Residential Directors ultimately were responsible for disciplinary actions.
1. August 14, 2009
On August 14, 2009, Defendants Watts and Lopez issued a written warning to Plaintiff for allegedly refusing to administer medication to consumers when directed to do so by Defendant Lopez. Plaintiff claims that she was unable to administer the medication because she had not received the required instructions from the nurse. Plaintiff grieved the warning through her union, and UCP agreed to rescind the warning.
2. December 18, 2009
On December 18, 2009, Plaintiff was issued another written warning for not preparing an "Alert" after a consumer allegedly had fallen during Plaintiff's shift and for allegedly using profanity towards Lopez. Plaintiff claims that, because she did not see the consumer fall, she was not authorized to prepare the alert and to do so would have been a violation of UCP policy. Plaintiff also denies that she used profanity.
3. February 18, 2010
On February 18, 2010, Plaintiff and a co-worker, Philomene Previl, were issued written warnings for engaging in an argument in the presence of consumers. Plaintiff denies that she was arguing with Previl. Both Plaintiff and Previl grieved the warnings through the union process, and Previl's warning was eventually reduced to a verbal warning, while Plaintiff's remained a written warning.
4. March 12, 2010
On March 12, 2010, Plaintiff was issued a final written warning for inappropriate and insubordinate behavior. Specifically, Plaintiff allegedly was conversing in the bathroom with another staff member who was bathing a consumer, which violated the consumer's privacy, and Plaintiff allegedly did not leave the bathroom and return to her duties when told to do so. Plaintiff claims that she was in the bathroom because she was vomiting.
5. April 21, 2010
On April 21, 2010, Defendant Watts documented in Plaintiff's personnel file that on January 7, 2010, Plaintiff was responsible for an audit deficiency because she had left the medication cart unlocked when dispensing medication.
H. Second Formal Complaint
On March 12, 2010, Plaintiff filed a second complaint with the NYSDHR and the EEOC ("Second Formal Complaint"). Specifically, the Second Formal Complaint mentioned the Transfer, the excessive scrutiny Plaintiff felt she was under at the new location, the August and December 2009 disciplinary actions and the alleged disparity in respect shown to women and men by Defendant Cameron.
I. Senior RP Specialist Position
In March 2010, Plaintiff wrote a letter to Defendant Watts applying for an available 40hour Senior RP Specialist position at the Landings. Plaintiff wrote a second letter to Watts regarding this position in September 2010. Watts did not ...