United States District Court, E.D. New York
Decided March 31, 2014
[Copyrighted Material Omitted]
For Gamien Batchelor, Plaintiff: Dominick Peter Revellino, Cronin & Byczek, LLP, Lake Success, NY; Linda Cronin, Moshe C. Bobker, Susan P Bernstein, Cronin & Byczek, LLP, New Hyde Park, NY.
For The City of New York, New York City Department of Correction, Commissioner Dora Shiro, individually and in their official capacity, Asst. Commissioner Richard R. White, individually and in their official capacity, Director Dennis Wall, individually and in their official capacity, Deputy Director Alexis Castillo, Chief of Department Larry Davis, Sr., Defendants: Damion Kenneth Lee Stodola, LEAD ATTORNEY, City of New York, Law Department, New York, NY; Daniel Chiu, LEAD ATTORNEY, Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY; Donna A. Canfield, LEAD ATTORNEY, NYC Law Department, Labor & Employment Division, New York, NY.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge.
Plaintiff Gamien Batchelor brings the above-captioned action against Defendants City of New York, New York City Department of Correction (" DOC" ), DOC Commissioner Dora Shiro, Assistant Commissioner Richard R. White, Director Dennis Wall, Deputy Director Alexis Castillo and Chief of Department Larry Davis, Sr., alleging claims of race and gender discrimination,
retaliation and creation of a hostile work environment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (" NYSHRL" ), the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (" NYCHRL" ), and 42 U.S.C. § 1983 and § 1981. Defendants moved for summary judgment as to all claims. (Docket Entry No. 36.) On October 16, 2013, the Court referred the motion to Magistrate Judge Vera M. Scanlon for a report and recommendation. On February 16, 2014, Judge Scanlon issued a report and recommendation (" R& R" ), recommending that the Court (1) dismiss all of Plaintiff's claims against DOC, (2) grant Plaintiff's request to withdraw her § 1983 claims, (3) dismiss Plaintiff's § 1981 gender discrimination claims, (4) dismiss Plaintiff's § 1981, NYSHRL and NYCHRL claims against Defendant Schiro in her individual capacity, (5) grant Defendants' summary judgment motion as to Plaintiff's federal, state and city race and gender discrimination claims as to the preferential allocation of vacation and holiday allegations during her employment at the Investigations Division, (6) deny Defendants' summary judgment motion as to Plaintiff's federal, state and city race and gender discrimination claims as to specialty-pay denial, (7) grant Defendants' summary judgment motion as to Plaintiff's federal, state and city law race and gender discrimination claims as to her transfer from the Investigations Division to the North Infirmary Command, (8) grant Defendants' summary judgment motion as to Plaintiff's federal, state and city law gender discrimination claims relating to various employment actions taken against her during her time at the North Infirmary Command and the Anna M. Kross Center, (9) grant Defendants' summary judgment motion as to Plaintiff's federal, state and city law hostile work environment claims stemming from her time at the North Infirmary Command and the Anna M. Kross Center, and (10) grant Defendants' summary judgment motion as to Plaintiff's federal, state and city law retaliation claims. (Docket Entry No. 45.) Plaintiff timely filed objections. (Docket Entry No. 48.) Defendants did not file objections. For the reasons set forth below, the Court adopts Judge Scanlon's R& R in its entirety.
The facts and procedural history of this action are set forth in detail in the R& R and are repeated here as necessary to provide context for the Court's decision.
Plaintiff is an African-American woman who is currently employed as a captain with the DOC. (Def. 56.1 ¶ 2 (citing Def. Ex. B, Deposition of Gamien Batchelor, (" Pl. Dep." ) 8:2); Compl. ¶ 5.) Plaintiff began working with DOC as a corrections officer in 2001, and was stationed at the North Infirmary Unit (" NIC" ) from 2005 through 2007. (Pl. Ex. A, Affidavit of Gamien Batchelor (" Batchelor Aff." ) ¶ 1; Pl. Dep. 21:25-22:5.) Plaintiff was appointed to the rank of captain on January 19, 2007, and in December 2007 applied for a transfer to work in the Investigation Division (" ID" ). The parties dispute what criteria were used by the ID in selecting captains. According to Plaintiff, one of the factors was a DOC-wide " promotions list" number that is assigned to each employee and is designed to represent that employee's seniority. (Pl. Dep. 29:17-24.) Plaintiff contends that another factor was the applicant's score on a citywide administration test. (Pl. Ex. D, Affidavit of Robin Franklin (" Franklin Aff." ) ¶ 7.) Plaintiff was interviewed in part by Richard White, a Deputy Commissioner in the ID, and Wall, a Deputy Director in the ID. (Def.
56.1 ¶ 5; Pl. 56.1 ¶ 5.) Plaintiff and another individual, Nathan Bialek, were both selected to work as captains in the ID on February 29, 2008. (Pl. Ex. C.)
a. Performance in the Investigations Division
Plaintiff began working in the ID on March 7, 2008, (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2), where she was responsible for supervising investigators and keeping track of the status of investigations, (Def. Ex. C, Deposition of Richard White (" White Dep." ) 17:5-7). According to White, Plaintiff was a " fair" captain who " had a lot to learn." ( Id. at 16:24-17:4.) Plaintiff " had some difficulties making the adjustments to the division," but after she worked on some of her difficulties " under the supervision of her deputy directors," and " staff supervisors," White did not recall " any subsequent issues." ( Id. at 17:4-15.) According to Wall, Plaintiff had " difficulty managing case loads," presented inadequate verbal reports at monthly supervisor's meetings, and in particular had problems presenting the statistics on her cases and could not answer questions about specific cases. (Def. Ex. F and Pl. Ex. D, Deposition of Dennis Wall (" Wall Dep." ) 17:18-24, 19:22-23, 20:3-6.) Wall never told Plaintiff about her performance problems, nor did he note her challenges in any written records or reports. ( Id. at 20:14-21:17.) Wall believed Plaintiff's inadequacies were " quite obvious at the meetings." ( Id. at 20:14-21:17.)
b. Temporary duty status
At an unspecified time, Wall placed Plaintiff on Temporary Duty (" TDY" ) status because of her inadequate performance. ( Id. at 35:13-25.) According to White, the factors that would be taken into account when deciding who would be assigned to a permanent position and who would be assigned to TDY status were " prior experience within the division, . . . prior experience within the agency, [and] any courses or knowledge or training you had received within the agency." (White Dep. 28:14-29:10.) DOC policy document on Temporary Duty Assignments states that " Temporary Duty Personnel are full duty personnel temporarily assigned from their parent command to another Facility / Division / Unit for a short term assignment." (Pl. Ex. I at 1.) A TDY assignment required a TDY Request/Extension Form with the reason for the appointment and the length of the assignment. ( Id.) The TDY assignments are for a duration of no more than 90 days, which could be extended if requested in writing. ( Id.) Wall did not tell Plaintiff that he was placing her on TDY status, and does not recall why he did not tell Plaintiff. (Wall Dep. at 36:2-9.)
c. Specialty pay
On June 27, 2008, Commissioner Horn issued a memorandum announcing a specialty-pay for certain positions, including a captain in ID, if in the position for at least six months and performing satisfactorily. (Pl. Ex. G at 1.) Individuals who were serving less than six months would qualify upon reaching the requisite time period. ( Id. at 2.) For Plaintiff and Bialek, who were named ID Captains on March 7, 2008, (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2), their specialty-pay commenced September 7, 2008. The specialty-pay would increase Plaintiff's annual salary of $80,000 in 2009 by $2,400. (Def. 56.1 ¶ 7; Pl. 56.1 ¶ 7.)
In October 2009, Plaintiff asked Alex Castillo, Deputy Director of the ID, about her specialty-pay and was told for the first time that she would not be receiving the pay because she was on TDY status. (Pl. Dep. 27:2-19.) Castillo told Plaintiff that Wall had " given Captain Bialek the permanent line," because " [t]hat's his boy." ( Id. at 27:19-28:12.) Plaintiff protested by stating, " It's not fair, that's not the way
you do business," and Castillo responded, " That's just the way it is." ( Id. at 28:14-17.) Bialek received specialty-pay in October 2009, and Plaintiff did not receive specialty-pay. (Def. 56.1 ¶ ¶ 6, 9; Pl. 56.1 ¶ ¶ 6, 9.)
d. Vacation, holidays and weekly pass days
Plaintiff and Bialek each had two " pass days" off each week; Plaintiff's pass days were Sunday and Monday, while Bialek's were Friday and Saturday. (Def. 56.1 ¶ ¶ 6, 8; Pl. 56.1 ¶ ¶ 6, 8.) The record does not indicate whether pass days were selected by Plaintiff and Bialek, or if those days were assigned to them; nor does Plaintiff state whether she would have preferred days other than Sunday and Monday as her pass days. According to Plaintiff, she often worked on major and/or Christian holidays, including Christmas, Easter and Thanksgiving. (Pl. Dep. 25:13-23.) Plaintiff contends that Bialek did not work on either Christian or Jewish holidays. ( Id. at 25:6-12; Pl. Ex. A, Affidavit of Gamien Batchelor (" Batchelor Aff." ) ¶ 5.) The time sheets show that Plaintiff worked on Christmas Day in 2008 and 2009, but did not work on Easter and Ash Wednesday in either year as those days were her pass days. (Def. Ex. F at 2, 4; Batchelor Aff. ¶ 5.) They also show that Bialek worked on Christmas Day and on Easter Sunday in 2008 and 2009. (Def. Ex. E.) Neither party addresses the total number of vacation days allotted to either Plaintiff or Bialek each year, how many vacation days were taken by either individual, or whether either individual requested and did not receive particular days off. Plaintiff claims that she held seniority # 7 and Bialek held seniority # 8, but " was denied her vacation pick while Bialek was granted his."  (Pl. 56.1 ¶ 6.)
e. Plaintiff's transfer to the North Infirmary Command and the Anna M. Kross Center
In January 2010, as a result of budget cuts, the ID was preparing to lose some staff. (Wall Dep. 55:10-12.) White and Wall decided that " if we were going to work with less staff we would work with the best staff we could find," and subsequently transferred Plaintiff to NIC. (Def. 56.1 ¶ 10; Pl. 56.1 ¶ 10; Wall Dep. 55:6-14.) Plaintiff contends that White told her that transfers would be determined based on seniority. (Pl. Dep. 29:2-5.) Plaintiff claims that she had greater seniority than Bialek. ( Id. at 29:19-30:8.) Plaintiff was transferred to NIC in January 2010 and remained there until April 2010. (Def. 56.1 ¶ 10; Pl. 56.1 ¶ 10; Pl. Dep. 31:9-10.) Bialek remained in the ID. (Pl. 56.1 ¶ 10; Def. Mem. 8.) According to the Complaint, Plaintiff did not have a locker and her shift hours were changed to a rotating schedule. (Compl. ¶ ¶ 34, 35.) Plaintiff complained to Warden Evelyn Mirabel on March 14, 2010, that the lack of a locker
and the change in her work schedule was discriminatory. ( Id. ¶ 36.)
On April 21, 2010, Plaintiff was told that the NIC building was closing. (Def. 56.1 ¶ 18; Pl. 56.1 ¶ 18; Pl. Dep. 58:10-25.) Plaintiff was transferred to the Anna M. Kross Center (" AMKC" ). (Def. 56.1 ¶ 18; Pl. 56.1 ¶ 18; Pl. Dep. 31:2-21.) Plaintiff and four other captains, who were the " last five at the bottom of the seniority list," were transferred to AMKC. (Pl. Dep. 13-21.)
f. Locker room at AMKC
Plaintiff started working at AMKC in April 2010. ( Id. at 47:12-14.) During the time that Plaintiff worked at AMKC, there were a total of four locker rooms for female employees, two for corrections officers and two for captains. ( Id. at 42:2-18.) According to Plaintiff, she was to receive a key to one of the locker rooms and be assigned a locker but she did not receive a key until approximately two-and-a-half to three months after she first began working at AMKC, and was never assigned a locker. ( Id. at 44:14-45:10.) Plaintiff drove to work wearing the pants and boots of her uniform, and changed into the rest of her uniform in the car once she arrived at work. ( Id. at 45:11-22.) Although she complained to an administrative captain about not having a locker, she was " brushed off." ( Id. at 46:9-47:14.) Plaintiff told her union representative who was " trying to work on it." ( Id.) In June 2010 other captains assisted Plaintiff in obtaining a key to one of the locker rooms, and Plaintiff brought her own locker from her previous post at NIC. ( Id. at 47:15-48:21.) The locker room was a repurposed closet, approximately six feet by six feet, which had no ventilation, toilets, or running water, and was shared by five captains. (Pl. 56.1 ¶ 15: Pl. Dep. 41:11-17, 44:5-13.) The other locker room assigned to female captains was larger, but Plaintiff did not have a key to that room. (Pl. Dep. 48:8-12.) Plaintiff had no knowledge about the male locker rooms. (Def. 56.1 ¶ 15; Pl. 56.1 ¶ 15; Pl. Dep. 42:19-24.) There is no evidence in the record about the number, size or condition of the male locker rooms or the amenities that they included.
g. Scrutiny and discipline at AMKC
According to Plaintiff, in May 2010, shortly after she arrived at AMKC, Assistant Deputy Warden (" ADW" ) Raylene Moses made a " threatening remark" to her by saying that Plaintiff was " no longer in Investigations and now [she's] in AMKC so [Plaintiff] will now see what's gonna happen to [her]." (Pl. Dep. 52:7-17.) Moses and another ADW, Livingstone Major were in a higher rank than Plaintiff, who was a Captain, and Plaintiff was therefore required to follow any lawful order issued by the ADWs. ( Id. at 40:11-41:3.) According to Plaintiff, both Moses and Major subjected Plaintiff to excessive scrutiny and " harass[ment]" in overseeing the performance of her duties. ( Id. at 54:12-18.) They " single[d] [Plaintiff] out" to ask if she had ensured that inmates had received their meals. ( Id. at 54:19-55:9.) Although Plaintiff contends that she was the only captain singled out, ( id. at 55:8-15), she admits that she did not know whether Major had ever contacted another captain other than Plaintiff to inquire whether or not the inmates had received their meals, ( id. at 55:16-19).
According to Plaintiff, Major subjected her to excessive scrutiny when he questioned Plaintiff at least 20 to 30 times during the year-and-a-half that Plaintiff worked at AMKC as to why she was not in the corridor during " inmate movement." 
( Id. at 56:2-17.) During institutional emergency preparedness drills, when all captains and corrections officers were required to put on protective gear and assemble in the corridors, Major singled out Plaintiff and questioned why she was not suited up properly. ( Id. at 36:2-39:5.) Plaintiff claims that the protective gear, designed to protect officers during an institutional alarm requiring their response to an inmate or other emergency, often fit the women poorly. (Pl. ...