United States District Court, S.D. New York
HEATHER N. BIVENS, Plaintiff,
INSTITUTE FOR COMMUNITY LIVING, INC. and HOWARD GOLDBERG, Individually and as Associate Executive Vice-President and Chief Quality and Compliance Officer, Defendants.
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge.
By all parties' accounts, Heather Bivens was an excellent employee and supervisor. In June 2012, however, she was fired when her employer, the Institute for Community Living, Inc. ("ICL"), needed to cut its budget. Bivens now brings this gender discrimination lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 et seq. ("NYCHRL"). Bivens alleges that she was selected for termination based on her gender, and to spare the job of a male co-worker who was less qualified and less experienced but favored by management because of his gender. The defendants are ICL and Bivens' former supervisor at ICL, Howard Goldberg, who made the decision to fire her.
Defendants now move to dismiss Bivens' Amended Complaint. For the reasons set forth below, the Court denies the motion to dismiss.
1. The Parties
Between 1994 and June 14, 2012, Bivens was employed in the "mental health/disability services industry as a counselor, therapist, clinical supervisor, and in various managerial positions." Dkt. 27 ("Am. Compl."), ¶ 20. She holds bachelor's and master's degrees in psychology. Id. ¶¶ 17-18. Before being hired by ICL in 2004, Bivens had "worked as a therapist, program supervisor, in emergency management, outpatient mental health clinics, residential programs, and with various populations including children, adolescents, adults, and families. Bivens also had experience in state and local government positions in Massachusetts and New York City." Id. ¶ 24. Between April 2004 and June 14, 2012, Bivens worked in a number of capacities at ICL, as detailed below.
ICL is a New York not-for-profit corporation that "provides recovery, treatment and community living services for people with histories of homelessness, mental illness, intellectual or developmental disabilities, chronic health conditions and/or substance abuse." Id. ¶¶ 8, 22. ICL serves more than 8, 000 individuals each year, and has more than 500 employees. Id. ¶¶ 10, 23. One of ICL's departments is the Quality Assurance & Improvement Department ("the Department" or "QA"). Id. ¶ 26. The Department's responsibilities include overseeing various mental health programs, ensuring compliance with regulations, investigating internal complaints, and overseeing internal audits. See id. ¶¶ 28-30. At all relevant times, Goldberg was a Department executive, id. ¶ 26, and Bivens' direct supervisor at ICL, id. ¶ 14. The Department had about 10 employees total, including Goldberg. The industry is predominantly female, id. ¶ 72: For the first seven years that Bivens worked at ICL - namely, 2004-2011 - the Department had no men, besides Goldberg. Id. ¶¶ 71, 89. In 2012, Goldberg hired a man, Nickolas Garin. Id. ¶ 61. The series of events involving Goldberg's hiring of Garin, and his decision to retain Garin while terminating Bivens, are reviewed in detail below.
2. Bivens' Employment at ICL: The first seven years (2004-11)
In 2004, Goldberg hired Bivens as "Director of Mental Health Services for Quality Assurance and Improvement, " a position she held for four years. Id. ¶¶ 21, 31. As a Director, she "chaired the agency's Mental Health Incident Review Committee; conducted internal investigations of complaints; was responsible for hiring and training new Quality Assurance staff; and was ICL's primary QA liaison to the New York State Commission on Quality of Care & Advocacy for Persons with Disabilities  and the N.Y.S. Office of Mental Health." Id. ¶ 30. Bivens was also tasked with, inter alia, "develop[ing] the Department with Goldberg." Id. ¶ 26.
Bivens was successful in these roles. Through interviewing and hiring, she helped build QA so that it had "a full complement of staff." Id. ¶ 27. And during her four-year tenure as a Director, "the number of mental health programs for which she provided audit oversight grew from about eighty to over one hundred programs. These programs included day treatment, supportive housing, shelters, case management, residential and outpatient treatment programs." Id. ¶ 28. She also "manag[ed] the internal QA audit process, ensur[ed] compliance with state, federal and agency regulation, and provid[ed] technical assistance." Id. ¶ 29. "Under Bivens' directorship, for the first time 100% of ICL's programs received annual internal audits." Id. ¶ 43. The system that Bivens implemented "significantly increased communications and monitoring between department and agency." Id. In addition, Bivens "developed a process to ensure the appropriate and timely report of incidents, which... led to ICL avoiding citations." Id. Bivens also chaired five different ICL committees. Id. ¶ 47. She was "the only ICL Director charged with oversight of agency-wide functions." Id. ¶ 45.
Effective July 1, 2008, Bivens was promoted to Associate Vice President ("AVP") of the Department. Id. ¶ 31. In that role, she "continued performing oversight and management of city, state and federal audits of ICL"; Bivens also "supervised the development and distribution of department reports and supervised ICL's incident management system, " and "supervis[ed] the Director of QA and Improvement for Intellectual and Developmental Disabilities Services." Id. ¶¶ 31-33. Further, Bivens oversaw three successful accreditation surveys (in 2004, 2007, and 2010), conducted by the Commission on Accreditation of Rehabilitation Facilities International ("CARF"). Id. ¶ 50.
In spring 2011, Bivens was promoted to Associate Senior Vice President ("ASVP") of the Department. Id. ¶ 34. In this position, Bivens "provided QA/QI oversight for all programs" and supervised the person who had succeeded her as AVP. Id. ¶ 35. As an ASVP, Bivens also "served as Chief Investigator with responsibility for oversight of ICL-wide internal investigations, " which included training and supervising the agency's 14 investigators. Id. ¶ 49. Bivens successfully mentored a number of subordinates, as well. Id. ¶ 51. In addition, Goldberg's job duties required his absence from the office for about two weeks every quarter; in Goldberg's absence, Bivens supervised the Department, including taking responsibility for "all compliance and QA/QI matters." Id. ¶¶ 36, 52.
Bivens' annual employee performance evaluations reflected her success at ICL. These evaluations were conducted on a 1-5 scale, with 5 being the highest. On this rating scale, a "3" indicated that an employee's performance consistently met expectations, a "4" meant that her performance met and often exceeded expectations, and a "5" indicated that her performance "consistently exceeds standards and expectations." Id. ¶ 38. Employees were evaluated in about 12 different categories. Id. ¶¶ 40-41. Bivens' evaluations were as follows; the number in bold is the average of her ratings in the 12 categories:
Id. ¶ 39.
Goldberg's written comments about Bivens accord with these positive - and consistently improving - numerical performance reviews. When Bivens was a Director, Goldberg praised her technological skills and capacity to learn quickly. Id. ¶ 130. He also wrote that "Heather exceeded expectations with her initiative and took on a leadership role in preparing for CARF, " a period in which "all levels of staff sought her counsel." Id. ¶ 50. In a 2008-09 evaluation, Goldberg praised Bivens' supervision and mentorship, stating: "Heather maintains a motivating environment for her staff, empowering them to learn and develop new skills." Id. ¶ 53. In a 2010-11 evaluation, Goldberg praised Bivens' work ethic and knowledge, stating: "Heather does whatever is needed to complete assignments, including working past normal scheduled hours when necessary.... Heather demonstrates an excellent understanding of the regulations and agency policies governing corporate compliance." Id. ¶ 121.
With respect to compensation, during her first seven years at ICL (2004-11), Bivens received multiple cost-of-living increases and two outright raises, each occurring when she was promoted. Her starting salary as a Director was $69, 000; her AVP salary was about $81, 000; and her ASVP salary was $97, 000. Id. ¶ 42. Before obtaining these promotions and raises, Bivens had to lobby Goldberg for "several years." Id. ¶ 86.
3. Goldberg Seeks, and Eventually Hires, a Male Employee
In September 2011, ICL Director Jo Casso retired, creating a vacancy. Id. ¶ 54. Casso, who is female, had been a Director in the Risk Management Section of the Department. Id. Shortly after Casso announced her retirement, Bivens "expressed interest in taking on Casso's duties" during a meeting with Goldberg. Id. ¶ 56. Bivens noted her experience in this area and her good relationships with Casso's staff. Id. However, "Goldberg dismissed this notion out of hand." Id. In or about October 2011, during another meeting with Goldberg, "Bivens again expressed her interest in taking over Casso's job duties. This conversation was much shorter than the September 2011 conversation as Goldberg appeared irritated at her suggestion." Id. ¶ 57.
In or about October 2011, Goldberg told Bivens and other Department members that, at a conference, he had met a man named Nickolas Garin, and "he was the one." Id. ¶ 58. "Goldberg expressed his determination to Bivens and other staff to convince Nick Garin  to apply for the  Director position. When Garin indicated that he was not interested in the job[.] Goldberg was visibly disturbed. Goldberg persisted until Garin applied for the position." Id. ¶ 59. "Over half of the  Director job was supervising" employees. Id. ¶ 64. Another aspect was supervising ...