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McGarty v. The City of New York

United States District Court, S.D. New York

September 16, 2014

DORIS McGARTY, Plaintiff,
v.
THE CITY OF NEW YORK, JOSEPH CARDIERI, General Counsel and Deputy Commissioner of Administration for Children's Services of the City of New York, and DIANE CONNOLLY, Assistant Commissioner of Administration for Children's Services of the City of New York, Defendants.

Charles B. Manuel, Jr., Esq., Manuel & Associates, LLP, New York, NY, Attorney for Plaintiff.

Donald C. Sullivan, Esq., Corporation Counsel of the City of New York, New York, NY, Attorney for Defendants.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

I. Introduction

Plaintiff Doris McGarty ("plaintiff"), a 65-year-old attorney working for New York City's Administration for Children's Services ("ACS"), brings this action against the City of New York, ACS General Counsel Joseph Cardieri, and former ACS Assistant Commissioner Diane Connolly (collectively, "defendants") claiming that she was demoted and denied positions because of her age and retaliated against for complaining of discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law ("NYCHRL"). Defendants move for summary judgment, asserting that no reasonable jury could find for plaintiff on any of her claims. For the reasons stated below, the Court grants defendants' motion for summary judgment as it relates to the ADEA and NYSHRL claims and dismisses without prejudice the NYCHRL claims.

II. Background[1]

The following facts are undisputed except where otherwise noted.

A. Initial Employment with the City: 1987-1998

In February 1987, plaintiff was hired by the City as an entry-level provisional staff attorney in the Family Law Division of ACS's predecessor agency, the Human Resources Administration. McGarty Decl. ¶ 2. In August 1988, she was promoted to the permanent civil service title of Attorney at Law Level 1. Pl. R. 56.1 ¶ 4. In March 1990, she was promoted again to the managerial rank of Associate General Counsel Level M-1. Id . ¶ 5. Because all managerial positions are provisional, plaintiff's underlying civil service title remained Attorney at Law Level 1 after she was promoted. McGarty Decl. ¶ 3. As Associate General Counsel, plaintiff performed a variety of legal, administrative, and supervisory duties, and provided critical assistance to the managers in charge of the family court units. Def. R. 56.1 ¶ 7; McGarty Decl. ¶¶ 44, 135, 136.

B. Working Directly for Defendant Cardieri: 1998-2002

In June 1998, defendant Joseph Cardieri became the Deputy General Counsel at ACS. Pl. R. 56.1 ¶ 16. Immediately after assuming that position, he interviewed and hired plaintiff, who was then 49 years old, to work directly for him. McGarty Decl. ¶¶ 23, 134; Sullivan Decl. Ex. B at 25. She functioned as his chief of staff - although that was not her official title - and served in that capacity for approximately four years, until August 2002. McGarty Decl. ¶ 134; Sullivan Decl. Ex. B at 25; Pl. R. 56.1 ¶¶ 9, 16.

Plaintiff's tenure working directly for Cardieri was marked by both positive and negative experiences. On the one hand, Cardieri occasionally praised plaintiff and showed his appreciation for her work. Pl. R. 56.1 ¶ 10. In addition, in April 2001, he promoted plaintiff to Executive Agency Counsel M-2 and gave her a raise. Id . ¶¶ 11, 12. Indeed, she described this period of time as being part of the "peak of [her] career." McGarty Decl. ¶ 139.

On the other hand, however, Cardieri repeatedly made comments to plaintiff about how she was "old guard" and that "we need more energy around here."[2] Pl. R. 56.1 ¶ 17. These comments began in 2000 and continued until she stopped working directly for Cardieri in 2002, at which point she no longer had contact with him. Id . ¶¶ 17, 21. Plaintiff testified that although her relationship with Cardieri was initially cordial, it deteriorated over time. McGarty Decl. ¶¶ 144, 151. Cardieri became more distant, stopped including plaintiff in important decisions, and began surrounding himself with younger staff.[3] Id . ¶¶ 146, 151; Pl. R. 56.1 ¶ 20. Plaintiff recounted specific actions Cardieri took which she found insulting, including: inviting other managing attorneys, but not her, to a tour of the Federal Reserve; telling her at a holiday party that he had presents for everyone except for her; and telling plaintiff at a time when her mother was sick that he was "tired of hearing about your sick mother." Pl. R. 56.1 ¶ 23.

C. Transfer to the Fair Hearings Unit in 2002

In August 2002, with no advance warning or explanation, Cardieri, who by then had become General Counsel, transferred plaintiff to the Fair Hearings Unit ("FHU"), a litigation unit within ACS. McGarty Decl. ¶ 152. Cardieri explained his decision to transfer plaintiff as follows:

I remember [FHU] needed staff, and [plaintiff] was available. I moved up to the General Counsel position and he had other administrative staff around him that I could rely on. And they needed an attorney in the Fair Hearings Unit so I thought [plaintiff] can do whatever work they needed to do and be supervised closely in the Fair Hearings Unit, and she went there without a title reduction, without a salary reduction.

Manuel Decl. Tr. Ex. C1 at ECF 54.

Although Cardieri was in charge of FHU, he did not have any contact with plaintiff after she was transferred because she no longer reported directly to him. Pl. R. 56.1 ¶ 29. Plaintiff was unhappy about the transfer because it entailed a decrease in job responsibility. Id . ¶ 26. However, according to her resume and deposition testimony, she still supervised other attorneys and had substantial litigation duties. Id . ¶¶ 27, 28; Sullivan Decl. Ex. K.

Plaintiff believed that her transfer to FHU was the result of Cardieri's alleged age bias. Pl. R. 56.1 ¶¶ 23, 24. Her belief was based on Cardieri's comments about the "old guard" and need for more energy, the fact that Cardieri had not criticized her work, and Cardieri's increasing reliance on her younger coworkers. Id . ¶ 24.

D. Transfer to the Accountability Review Panel in 2008

In 2008, after approximately six years in FHU, plaintiff was transferred to the Accountability Review Panel ("ARP"), a nine-person unit within ACS that analyzes child fatalities and offers suggestions for systemic changes.[4] Pl. R. 56.1 ¶¶ 37, 41, 42. As with her previous transfer, she was not consulted ahead of time; she was simply told that she was being transferred. Id . ¶ 39. She was unhappy with this approach, which she viewed as disrespectful. Id.

Plaintiff was also unhappy with being placed in ARP. Although she described the unit as having "one of the most sensitive functions within any City agency, " she perceived the transfer to be "a diminishment of [her] role in the agency." Id . ¶¶ 39, 40. Defendant Diane Connolly, who took charge of ARP in February 2011, testified that ARP had two supervisors, Melanie Levin and Fredda Monn. Sullivan Decl. Ex. O at 95. Plaintiff conceded that Levin and Monn were the unit supervisors. Sullivan Decl. Ex. B at 51. However, she testified that she acted as a supervisor on an "as-needed" basis when asked by Monn to review reports written by others. Id . at 51-52. Monn echoed this testimony, stating that she gave plaintiff supervisory work. Manuel Decl. Tr. Ex. D at ECF 39, 82. Monn also testified that plaintiff performed this work very well. Id . In addition to reviewing reports written by others, plaintiff's duties at ARP included writing legal summaries and state fatality reports, interfacing with the Office of Children and Family Services, and presenting cases at ARP meetings. Sullivan Decl. Ex. B at 48-49, Ex. K.

E. City Budget Crisis and Decision to Demote Plaintiff

In 2010, the City was in the midst of a financial crisis which required ACS to reduce its operating budget by implementing programs to eliminate the gap ("PEGs") between expenses and revenue.[5] Sullivan Decl. Ex. E ¶¶ 6, 7. PEGs resulted in program cuts, staff demotions, reassignments, and layoffs at ACS and other City agencies. Id . ¶¶ 7, 8.

In September 2010, Cardieri asked his Deputy General Counsel Martin Baron to make recommendations on how to achieve the $205, 902 budget reduction goal - or "PEG target" - set for the General Counsel's Office. Id . ¶¶ 9, 14, 15. All ACS divisions received the following instructions regarding how they could achieve their assigned PEG targets:

In order to allow for some flexibility in decision-making within each division, we are converting each division's target to a dollar amount and will be accepting the following items as credit' toward the target dollar amount. We will forward the $ dollar amount target for your division shortly.
• Any clerical or secretary position currently filled by a permanent staff person
• Any pure provisional staff person
• Any demotion
• Removal of any item that is on the approved [sic] critical approved list
Julie will be sending your division's personnel sheets on Monday, we ask that you send us the names of staff you propose to layoff [sic] or demote in a spreadsheet by next Friday September 30th. If you are doing a demotion, please specify the dollar amount the salary will be reduced to.

Sullivan Decl. Ex. E-1; see also Sullivan Decl. Ex. F at 72.

Consistent with these instructions, Baron proposed the following personnel actions to meet the $205, 902 target: (1) allowing Robin Siskin, an attorney, to retire, netting a savings of $77, 015;[6] (2) laying off Linda Speranza, a Principal Administrative Associate, saving $46, 126; (3) laying off Shirley Williams, another Principal Administrative Associate, saving $57, 357; and (4) laying off Vernell Webb, a secretary, saving $35, 285.[7] Sullivan Decl. Ex. E ¶ 17. These proposed actions would have resulted in a total budget reduction of $215, 783.

Cardieri approved Baron's proposal and submitted it to ACS for implementation. Id . However, ACS's Personnel Division informed Cardieri and Baron that the PEG proposal would need to be revised since two of the employees slated for termination - Williams and Speranza - held civil service titles which prevented them from being laid off under the PEG.[8] Id . ¶ 18. Consequently, Cardieri tasked Baron with finding another way to meet the PEG target. Id . ¶ 19.

To make up the approximately $100, 000 savings that could no longer be achieved by laying off Williams and Speranza, Baron proposed laying off secretary Lencia Trotman, whose salary was $53, 031, and either laying off another clerical staff member[9] or demoting plaintiff to her underlying civil service title, which, according to Baron, would save the office $36, 141. Id . ¶¶ 20-22. Baron preferred the option of demoting plaintiff because he believed it imposed the least damage to the General Counsel's Office and prevented the need to lay off another employee. Id . ¶ 23. Baron also explained:

In evaluating alternatives, I considered whether there were other demotions that could take place and/or whether there were other employees who could be let go without adversely affecting the operations of the General Counsel's Office. Further, it was my understanding, based on discussions with other ACS staff, that [plaintiff] could perform similar functions to those she was then currently performing if she was returned to her underlying civil service title, and that [plaintiff] was not supervising anyone despite the fact that she had a managerial title.

Id. ¶ 21.

Cardieri testified that he tried to avoid having to either lay off another employee or demote plaintiff, but that ACS's Finance Division, having generously credited Robin Siskin's retirement towards the PEG target, demanded that the General Counsel's Office meet its target. Sullivan Decl. Ex. F at 80. Therefore, Cardieri selected the option of demoting plaintiff, and on October 5, 2010 he submitted a revised PEG proposal which included plaintiff's demotion from Executive Agency Counsel M-2 with a salary of $103, 600 to Attorney at Law with a salary of $67, 459.[10] Sullivan Decl. Ex. E ¶¶ 23, 24. Plaintiff claims that Cardieri chose to demote her because of her age.

Plaintiff was not the only manager demoted as a result of the budget crisis. See Sullivan Reply Decl. Ex. W-K; Manuel Decl. Ex. 9. Indeed, several managers at ACS were demoted for PEG purposes, some with substantial reductions in salary. See, e.g., Manuel Decl. Ex. 9 (Howard Wexler demoted from Computer Systems Manager M-1 earning $93, 625 to Computer Aide 2 earning $55, 553). However, plaintiff asserts that she was the only attorney manager who was demoted for PEG purposes, and that even the attorney managers demoted for cause during this period did not receive salary and title reductions as great as those she received. McGarty Decl. ¶¶ 68, 69.

At the time Cardieri submitted his PEG proposal, forty-one employees in the General Counsel's Office (including plaintiff) held the title Attorney at Law, Agency Attorney, or Executive Agency Counsel. Def. R. 56.1 ¶ 85. Of those forty-one employees, ten were between the ages of 40 and 49 (including Cardieri, who was 46[11]), twelve were between the ages of 50 and 59, and eight were 60 or older. Id . ¶¶ 87, 88. Of the eight who were 60 or older, one (Baron) was 60, ...


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