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Shao v. City University of New York

United States District Court, S.D. New York

September 30, 2014

CONNIE SHAO, Plaintiff,
CITY UNIVERSITY OF NEW YORK, et al., Defendants.


RICHARD J. SULLIVAN, District Judge.

Plaintiff Connie Shao ("Plaintiff") brings this action against Defendants City University of New York-City College ("CUNY"), CUNY President Lisa Staiano-Coico ("Staiano-Coico"), and Donna L. Diane ("Diane, " and collectively with CUNY and Staiano-Coico, "Defendants"), alleging discrimination on the basis of her race, national origin, and gender; retaliation; and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. §§ 1981 and 1983; Article I, §§ 6 and 11 of the Constitution of the State of New York; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Plaintiff also asserts common law claims for intentional and negligent infliction of emotional distress against Staiano-Coico and Diane and breach of contract against CUNY, and seeks to hold CUNY liable for the actions of Staiano-Coico and Diane under the doctrine of respondeat superior. Now before the Court is Defendants' motion for summary judgment. For the reasons set forth below, Defendants' motion is granted in part and denied in part.


A. Facts[1]

Plaintiff - an Asian-American woman of Chinese ancestry (Def. 56.1 Stmt. ¶ 1) - served as CUNY's Director of Finance from September 2003 through June 30, 2011 ( id. ). During that time period, Plaintiff performed "accounting, banking, and investment functions, " prepared various financial reports and plans, and oversaw the preparation of tax returns. ( Id. ¶ 3.) From September 1, 2007 through the end of her employment at CUNY, Plaintiff was directly supervised by Diane, who served as CUNY's Controller. ( Id. ¶ 4.) Prior to Diane's appointment as Controller, Plaintiff reported to Richard Metz, a non-accountant who served as Vice President for Administration and Finance ("Vice President Metz"). ( Id. ¶ 4-6.) Throughout her employment, Plaintiff was also supervised by Vice President for Finance Dan Creange ("Vice President Creange"). (Pl. 56.1 Stmt. ¶ 6.) Staiano-Coico began service as CUNY's President in August 2010 and continues to hold that position. (Def. 56.1 Stmt. ¶ 8.) Plaintiff and Staiano-Coico never interacted personally. ( Id. ¶ 9.)

Over the course of Plaintiff's employment at CUNY, she received four employment evaluations. The first two, completed by Vice President Creange on February 26, 2004 and June 20, 2006, were positive and characterized Plaintiff as "outstanding" and "perfect, " respectively. (Pl. 56.1 Stmt. ¶¶ 8-9; see also Opp'n Ex. B at 10 ("2004 Evaluation"); id. at 8-9 ("2006 Evaluation").) However, the latter two evaluations, which Diane prepared on January 27, 2010 and February 23, 2011, were much more negative and made specific references to "unsatisfactory" performance. (Def. 56.1 Stmt. ¶¶ 41, 46; see also Declaration of Clement J. Colucci, dated September 13, 2013, Doc. No. 30 ("Colucci Decl.") Ex. 8 ("2010 Evaluation"); Colucci Decl. Ex. 9 ("2011 Evaluation").) Plaintiff objected to the 2010 Evaluation and submitted a rebuttal to be included in her personnel file. (Def. 56.1 Stmt. ¶ 42.) Plaintiff also filed a grievance through her union concerning the 2010 Evaluation; however, Plaintiff ultimately abandoned the grievance after pursuing it unsuccessfully through the first two steps of the three-step grievance process. ( Id. ¶ 43.) Following receipt of the 2011 Evaluation, Plaintiff again submitted a rebuttal, filed a grievance, and ultimately abandoned the grievance after the first two steps of the process. ( Id. ¶¶ 47-48.)

In February 2011, Diane met with Plaintiff for the purpose of conducting her yearly evaluation and announced that she had decided to terminate Plaintiff's employment. (Def. 56.1 Stmt. ¶¶ 44, 49; Pl. 56.1 Stmt. ¶ 28.) Immediately following the February 2011 Evaluation conference, Plaintiff received a termination letter, dated February 23, 2011, and "was escorted from the campus" the next day.[2] (Colucci Decl. Ex. 13, Deposition of Connie Shao, May 23, 2013 ("Shao Dep.") 262:16-18; see also Def. 56.1 Stmt. ¶ 49; Pl. 56.1 Stmt. ¶ 28; Colucci Decl. Ex. 10.) On April 21, 2011, Plaintiff appealed her termination to Staiano-Coico, who denied the appeal. (Def. 56.1 Stmt. ¶ 50.) Plaintiff thereafter asked Staiano-Coico for a statement of reasons for her denial of Plaintiff's appeal ( id. ¶ 52), and Staiano-Coico responded on July 12, 2011 by "referring to the two consecutive unsatisfactory evaluations" ( id. ¶ 53; see also Declaration of Lisa Staiano-Coico, dated September 4, 2013, Doc. No. 32 ("Staiano-Coico Decl.") ¶¶ 3, 14, 17). Thereafter, Plaintiff grieved her termination but again abandoned the process after unsuccessfully completing the first two steps. (Def. 56.1 Stmt. ¶ 54.)

B. Procedural History

In September 2011, Plaintiff filed an administrative charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that she suffered discrimination on the basis of "race, national origin[, ] and accent and [was] subjected to an adverse employment action [termination] when [she] formally complained" about that discrimination. (Colucci Decl. Ex. 11; see also Def. 56.1 Stmt. & 55.) On December 3, 2011, the EEOC issued a letter regarding Plaintiff's EEOC charge, in which the EEOC determined that it was "unable to conclude that the information obtained [from Plaintiff's EEOC complaint] establishes violations of the statutes." (Colucci Decl. Ex. 12; see also Def. 56.1 Stmt. & 55.) Plaintiff commenced this action on March 2, 2012, within 90 days of her receipt of the EEOC letter. (Doc. No. 1.) She subsequently filed the Amended Complaint on March 23, 2012, alleging numerous causes of action.[3] (Doc. No. 2 ("Amended Compl.").) In essence, Plaintiff alleges that she was subjected to ridicule and derision, denied training opportunities, retaliated against for refusing to terminate another Chinese employee, and ultimately terminated on the basis of her gender and Chinese ancestry, heritage, and accent. ( See Amended Compl.) Defendants filed the instant motion seeking summary judgment on all of Plaintiff's causes of action on September 13, 2013 (Doc. Nos. 28-35), and the motion was fully submitted on November 8, 2013 (Doc. Nos. 37-40).


Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). There is "no genuine dispute as to any material fact" where (1) the parties agree on all facts (that is, there are no disputed facts); (2) the parties disagree on some or all facts, but a reasonable fact-finder could never accept the nonmoving party's version of the facts (that is, there are no genuinely disputed facts), see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); or (3) the parties disagree on some or all facts, but even on the nonmoving party's version of the facts, the moving party would win as a matter of law (that is, none of the factual disputes are material), see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether a fact is genuinely disputed, the court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to show a genuine dispute, the nonmoving party must provide "hard evidence, " D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998), "from which a reasonable inference in [its] favor may be drawn, " Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation marks omitted). "Conclusory allegations, conjecture, and speculation, " Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), as well as the existence of a mere "scintilla of evidence in support of the [nonmoving party's] position, " Anderson, 477 U.S. at 252, are insufficient to create a genuinely disputed fact. A moving party is "entitled to judgment as a matter of law" on an issue if (1) it bears the burden of proof on the issue and the undisputed facts meet that burden; or (2) the nonmoving party bears the burden of proof on the issue and the moving party "show[s]' - that is, point[s] out... - that there is an absence of evidence [in the record] to support the nonmoving party's [position], " see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).


Defendants make four principal arguments in support of the instant motion for summary judgment. First, Defendants argue that Plaintiff has failed to present sufficient evidence of discrimination to rebut Defendants' nondiscriminatory explanation for the decision to terminate Plaintiff. ( See Def. Mem. at 14-19.) Second, Defendants argue that Plaintiff has not adequately exhausted her administrative remedies with respect to her claim of discriminatory retaliation and that, in any event, Plaintiff has failed to state a claim for retaliation. ( See Def. Mem. at 19-22.) Third, Defendants seek to limit which claims may be brought against CUNY and the individual defendants, based on a number of doctrines, including sovereign immunity. ( See Def. Mem. at 13 n.10.) Fourth, Defendants attack Plaintiff's claims of intentional and negligent infliction of emotional distress on grounds of both legal and factual insufficiency. ( See Def. Mem. at 13 n.10, 22-25.)

Because the parties' briefs present legal arguments and theories in a somewhat scattershot manner, the Court will address the various causes of action as presented in the Amended Complaint.

A. Title VII

Plaintiff brings claims against CUNY for discrimination and retaliation based on race, gender, and national origin in violation of Title VII. Specifically, Plaintiff contends that she was denied training opportunities and ultimately terminated because of her gender and Chinese ancestry and heritage. She also asserts that she was subjected to a hostile work environment by virtue of Diane's discriminatory conduct, and that her termination constituted retaliation for her refusal to ...

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