United States District Court, S.D. New York
OPINION AND ORDER
GREGORY H. WOODS, District Judge.
Ms. Martinez claims that she was terminated from her provisional position as a human rights specialist at the New York State Division of Human Rights because she was pregnant and disabled. In response, the defendants assert that the plaintiff held a provisional position that automatically terminated when permanent positions were filled by other candidates. The defendants contend that candidates other than the plaintiff were selected for non-discriminatory reasons. Because no reasonable jury could find that Ms. Martinez was "disabled" within the meaning of the Rehabilitation Act, the Court GRANTS summary judgment in favor of the defendants with respect to the plaintiff's claims under the Rehabilitation Act. The plaintiff's claims that arise under the New York State Human Rights Law ("NYSHRL") are remanded to state court.
Ms. Martinez worked as a provisional Human Rights Specialist I ("HRS I") for the New York State Division of Human Rights ("DHR") from December 2008 until April 2011. Plaintiff's Response to Defendants Rule 56.1 Statement ("Pl. Resp. 56.1") ¶¶ 4, 22. Provisional appointments "may only be made when there is no existing viable Civil Service list for the title." Id. ¶ 8. Positions held by provisional employees are eliminated by operation of law within two months following the establishment of a Civil Service list. Id.
On October 16, 2010, the State administered a civil service examination for permanent HRS I positions. Id. ¶ 9. Two hundred and fifty-seven people, including the plaintiff, took the exam. Id. The New York State civil service law establishes that all candidates with the highest score on the examination are eligible for appointment to permanent positions. Id. ¶ 11. Candidates with lower scores can be considered only when there are fewer than three candidates with higher scores. The plaintiff received the highest possible score, but she was not unique; one hundred and sixteen other candidates also received that score. Id. ¶ 12.
DHR had seven available permanent HRS I positions. Id. ¶ 12. Four of the seven positions required the candidate to be fluent in Spanish. Id. Those positions are referred to as "HRS I SL" positions. One of the positions required fluency in Chinese. Id. ¶ 13. The plaintiff reported that she spoke Spanish, and, therefore, was included on the list for consideration for the HRS I SL position. Id. ¶ 14. The two HRS I positions that did not require special language competency were located in Binghamton and Syracuse. Id. ¶ 15. The four HRS I SL positions were located in DHR's Buffalo, Upper and Lower Manhattan, and Brooklyn offices. Id.
On January 24, 2011, the plaintiff told Jyll Townes, the DHR's Deputy Commissioner for Regional Offices, that she was pregnant. Id. ¶ 80. The plaintiff asserts that Townes sarcastically replied, "I guess you are going to be a Mom and not a superwoman like me." Id. Ms. Townes denies that she ever made that statement. Id.
According to the defendants, on February 3, 2011, a representative of the DHR asked the plaintiff whether she wanted to be considered for the HRS I position in the Buffalo office; she said that she was not. Pl. Resp. 56.1. ¶¶ 16-17. The plaintiff denies that she made such a statement. Defendants' Response to Plaintiff's Revised 56.1 Statement ("Def. Resp. 56.1") ¶ 80.
On February 11, 2011, the plaintiff slipped and fell in one of the DHR's Bronx office restrooms. Id. ¶ 37. After the injury, the plaintiff was placed on medical leave. Id. According to an independent medical exam conducted on April 1, 2011, as a result of the slip and fall, the plaintiff suffered from "Sprain of the lumbosacral spine. Coccydynia. Right greater trochanteric bursitis." Letter from Mark Kramer, M.D., April 1, 2011 ("Kramer Letter") (Ex. 21 to Affidavit of Anne Bush) at 3. The plaintiff admits that she could have resumed her duties around May 15, 2011 "with certain accommodations and despite her ongoing disabilities." Pl. Resp. 56.1. ¶ 37. The plaintiff cites to Dr. Kramer's letter to support the assertion that she was "disabled" at the time, however, the medical examination recommended no restrictions on plaintiff's work as a result of her slip and fall injuries. The only restriction that Dr. Kramer suggested was that plaintiff avoid lifting "because she is now pregnant." Kramer Letter at 3. The plaintiff received worker's compensation benefits from July 2011 to May 2012. Pl. Resp. 56.1 ¶ 37.
On March 9, 2011, while on leave, the plaintiff was interviewed for the HRS I SL position. Id. ¶ 18. Several officials from DHR were present at the interview: Townes, Regional Directors Joyce Yearwood-Drury and David Powell, and Director of Personnel Jose Gonzalez. Id. The plaintiff claims that at the time of her interview she was "still limping and in pain from my fall". Plaintiff's Affidavit, dated July 25, 2014 ("Pl. Aff.") ¶ 34. The plaintiff was also visibly pregnant. Pl. Resp. 56.1 ¶ 48. The plaintiff claims that during the interview, Townes asked her, "Where do you see yourself in five years?" The plaintiff responded, "definitely working in human rights, " that she "believed" in human rights and that her children would be "old enough" to allow her some freedom. Pl. Aff. ¶ 37. The plaintiff claims that Yearwood then asked "What about this one?" while pointing at plaintiff's pregnant abdomen, and that all those present laughed. Id. ¶ 38. However, while the complaint portrays this incident as intentionally hurtful, the plaintiff testified in her deposition that she perceived the comment as "a joke that was not meant to hurt her in any way." Pl. Resp. 56.1 ¶ 51.
The plaintiff claims that on March 30, 2011, Gonzalez called her, with Townes present on the phone, to advise her that they had not received plaintiff's civil service exam payment, and that DHR could not "finalize" the plaintiff's permanent appointment until that payment was "sorted out...." Pl. Aff. ¶ 40. The plaintiff says that she was "excited to hear that I had been selected for the permanent position." Id. ¶ 41. The plaintiff also claims that when she asked Gonzalez on April 1, 2011 to which office she was going to be permanently appointed, Gonzalez responded, "to the Brooklyn office, because that is where you worked." Id. ¶ 42. The defendants dispute whether Gonzalez ever told the plaintiff that she had been selected for a permanent position in the Brooklyn office. Def. Resp. 56.1 ¶ 96.
On April 4, 2011, the plaintiff's doctor's office sent DHR's Human Resources Officer, Linette General, an updated medical note, indicating that the doctor would be reevaluating her by the end of the week. Id. ¶ 68. On the same day, Townes sent the plaintiff an email stating that the plaintiff had failed to report to work that day. Id. ¶ 100. Later that same day, Gonzalez called the plaintiff to inquire about her medical condition; the plaintiff responded that she had been examined but was not given any information. Pl. Aff. ¶ 48. The plaintiff claims that Gonzalez then confirmed that the plaintiff had been listed as 100% disabled with the New York State Insurance Fund. Id.
The defendants claim that the plaintiff failed to keep her supervisor apprised as to when she would return to work despite being directed to do so, and that she did not report to work on the date she was expected back. Def. Resp. 56.1 ¶ 84. On April 4, 2011, Townes sent the plaintiff an email stating that the plaintiff had failed to report to work that day, threatening to suspend the plaintiff without pay if "[going forward] a medical note is not submitted in timely manner." Id. ¶ 100. The plaintiff states, however, that she was in contact with DHR's Human Resources personnel and her co-workers and supervisors throughout her disability leave. Id. For example, the plaintiff's chiropractor provided a note to DHR's Human Resources Officer estimating that the plaintiff could return to work on March 4, 2011. Id. ¶ 86. On March 4, 2011, the plaintiff's chiropractor sent General a follow-up note revising the return date to April 4, 2011. Id. ¶ 90. And on April 4, 2011, the plaintiff's doctor faxed General an updated note indicating that he would be reevaluating the plaintiff on April 7, 2011. Id. ¶ 98. The defendants counter that these notes were not direct communications with the plaintiff's supervisors, such as Townes-a point that the plaintiff does not dispute. Id. On April 6, 2011, Ali Jafri, the DHR's Associate Personnel Administrator, at the direction of Gonzalez, called the plaintiff and informed her that she had not been selected for a permanent position and that her provisional position would expire on April 13, 2011. Id. ¶ 22.
The plaintiff also claims that on April 13, 2011, Yearwood informed her that she had specifically selected the plaintiff for a permanent position to the DHR's Brooklyn office and had informed Townes and Gonzalez of her selection on the day of the plaintiff's March 9, 2011 interview. Pl. Resp. 56.1 ¶¶ 20, 110. The plaintiff also claims that Yearwood told her how "sorry" she was about the plaintiff's "termination" and that she did not agree with the decision, that Yearwood had selected the plaintiff because she had scored 100% on the exam and "because of the high quality of [plaintiff's] work coupled with two years of experience in the position, " and that it was Townes who had reversed the decision and de-selected the plaintiff. Id.; Def. Resp. 56.1 ¶¶ 108-109. However, Yearwood denies ever telling the plaintiff that she had selected the plaintiff for a permanent position, and claims that essentially all she said during the conversation was "sorry." Id. The defendants also state that Yearwood did not have the authority to hire anyone; rather, DHR Commissioner Galen Kirkland was solely responsible for deciding who to hire, and that he made these decisions without consulting Townes. Id. ¶¶ 61, 108; Pl. Resp. 56.1 ¶ 21. The plaintiff disputes whether Kirkland was involved in the hiring of HRS Is, and argues that Kirkland took advice from his directors about hiring. Id. ¶¶ 61-62.
On March 18, 2011, DHR hired Johnnayea Kennedy, Raed Issa, and Yi Zhu for permanent HRS I positions. Pl. Resp. 56.1 ¶ 23. Zhu was hired for a Chinese language position, for which plaintiff was not eligible. Id. Kennedy was hired to the Syracuse office, and Issa and Zhu were hired to the Lower Manhattan office. Id. Kennedy was eight months pregnant at the time of her hiring. Id. ¶ 25. She scored 100% on the HRS I exam and had been a provisional employee longer than plaintiff. Id. ¶ 26. Issa scored 100% on the HRS I exam, was fluent in Spanish, and had been a provisional employee longer than plaintiff. Id. ¶ 27.
On August 11, 2011, DHR hired Halle Jones, Froebel Chungata, and Julianna Yanez for permanent HRS I positions. Id. ¶ 24. Jones was hired to the Upper Manhattan office, Chungata was hired to the Brooklyn office, and Yanez was hired to the Buffalo office. Id. Jones and Chungata both scored 100% on the exam and were admitted to practice law in New York at the time of their hiring, unlike plaintiff. Id. ¶¶ 29-30. Yanez scored 70% on the civil service exam, but was eligible for consideration under the Civil Service Law because candidates with higher scores, including the plaintiff, were not interested in a position in the Buffalo office. Id. ¶ 33. Again, the plaintiff asserts that she never said that she was uninterested in working in the Buffalo. Id.
The parties also disagree over the quality of plaintiff's performance during her tenure as a provisional employee. While the plaintiff claims that she was an "excellent employee, " the defendants note that her performance evaluation identified a lack of focus, the need for better caseload management, and 23 instances of tardiness. Def. Resp. 56.1 ¶¶ 63-64. The plaintiff admits to instances of tardiness, but only by a few minutes, and claims she always stayed late to make up the time. Id. ¶ 64. The defendants also note that the plaintiff closed a below-average number of cases per year-a point she does not dispute. Id. ¶ 65.
B. Procedural History
The plaintiff filed this action in the Supreme Court of the State of New York, Bronx County, on January 16, 2012. Dkt. No. 1. On February 25, 2013, the defendants removed the action to this Court. Id. On June 13, 2014, the defendants filed a motion for summary judgment on all of plaintiff's claims. Dkts. No. 45-49. The plaintiff filed an opposition to the motion on July 25, 2014, Dkts. No. 57-62, and an amended supporting memorandum of law in opposition on August 8, 2014, Dkt. No. 68. The defendants submitted their reply to the opposition on August 14, 2014. Dkt. No. 72.
A. Standard of Review
The defendants are entitled to summary judgment if they can show that "there is no genuine dispute as to any material fact and that [the defendants are] entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). A dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party, " while a fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there exists a genuine dispute as to a material fact, the Court is "required to resolve all ambiguities and draw all permissible factual inferences ...