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Thelwell v. City of New York

United States District Court, S.D. New York

July 28, 2015

CITY OF NEW YORK, ET AL., Defendants.


JOHN G. KOELTL, District Judge.

The plaintiff, Winsome Thelwell, brought this action pursuant to § 1981 as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981; the New York Human Rights Law, New York State Executive Law § 296 et seq. (the "NYSHRL"); and the New York City Human Rights Law, Administrative Code of the City of New York § 8-101 et seq. (the "NYCHRL"), against the defendant, the City of New York, and an individual defendant, Laura Edidin. The plaintiff alleges (1) discrimination claims on the basis of race and national origin arising out of the plaintiff's alleged non-promotion; (2) hostile work environment claims on the basis of race and national origin; and (3) retaliation claims on the basis of the plaintiff's filing of this lawsuit.

The defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing much of the Amended Complaint. The defendants also move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure dismissing additional allegations of retaliation made in the Amended Complaint after the close of discovery.


The following facts are taken from the evidence submitted to the Court and are construed in the light most favorable to the plaintiff. All facts are undisputed unless otherwise noted.


The plaintiff, Winsome Thelwell, is an African-American woman, born in Jamaica and of West Indian origin. Am. Compl. ¶ 6. She has a master's degree in public administration from New York University. Maduegbuna Decl. Ex. 19.

In 1994, Thelwell began working for the New York City Civilian Complaint Review Board (the "CCRB") as a "College Aide." Stodola Decl. Ex. L. The CCRB, a local government agency, receives, investigates, mediates, hears, makes findings, and recommends action on complaints against New York City police officers. Defs. 56.1 Stmt. ¶ 3. The CCRB is led by a thirteenmember Board of Directors (the "Board"), and an Executive Director. Id . ¶ 4. Thelwell currently works as the manager of one of six teams within the CCRB's investigation unit. Pl. 56.1 Stmt. ¶ 13; Maduegbuna Decl. Ex. 66. Each team includes investigators of various levels, a supervisor, an assistant supervisor, and a team manager. Maduegbuna Decl. Ex. 66.

Thelwell received several promotions in her rise from college aide to her current position of team manager. In July 1997, Thelwell was promoted to a Level 1 Investigator position, then Level 2 in February 1998, Level 3 in December 1998, and then in June 2001, she became a Supervisory Investigator. Defs. 56.1 Stmt. ¶¶ 16-19. Finally, in June 2005, Thelwell was promoted to her current position of team manager. Id . ¶ 20. In this role, Thelwell manages Investigative Team 5, oversees Team 5's caseload, and acts as a liaison between Team 5 and CCRB's executive staff, among other things. Thelwell Dep. at 39-42. As a team manager, Thelwell reports to the Deputy Executive Director for Investigations (the "DEDI"), who in turn reports to the Executive Director of the CCRB. Thelwell Dep. 88; Maduegbuna Decl. Ex. 14, at 2174.

Until late 2011, Thelwell appears to have received generally good reviews on her performance as manager, with some caveats. From 2008 to 2011, Thelwell reported to DEDI Meera Joshi. Thompson Dep. 61-62; Thelwell Dep. 75-76. In a review for the 2010 year, Joshi gave Thelwell an overall rating of 3.5 on a 1-5 scale, between "Fully Meets Requirements" (3), and "Greatly Exceeds Requirements" (4). Maduegbuna Decl. Ex. 27. Joshi noted Team 5's "poor team performance" in various metrics for the year, but acknowledged that Thelwell had dealt with "numerous personnel issues and a mounting docket" that year. Id . Generally, Joshi gave Thelwell high praise, writing that Thelwell is a "pleasure to work with" and a "strong manager." Id . In addition to Joshi's 2010 evaluation, Thelwell points to several e-mails and certificates in which her managerial performance or Team 5's performance was recognized. See Maduegbuna Decl. Exs. 21-22.

Overall, the witness testimony offered in the record paints Thelwell as a competent, albeit strict team manager. Carlmais Johnson, who worked under Thelwell as a Team 5 investigator and was friendly with Thelwell, Daw Dep. 48, stated that she enjoyed working on Team 5, but that some others did not want to be put on Team 5 because it was a "harder team to be on" due to Thelwell's "high standards" for investigators. Johnson Dep. 31. Carolene George, the Human Resources Director, also testified that there was a perception of Thelwell as a tough manager, but she did not think it was warranted. George Dep. 67-68.


In September 2010, the defendant Laura Edidin joined CCRB as "special counsel" to run a new project within CCRB, the Administrative Prosecution Unit. Defs. 56.1 Stmt. ¶ 22. In September 2011, Joshi left the CCRB, and in November 2011, the Board hired Edidin to replace Joshi as the DEDI. Id . ¶ 23. Once Edidin became the DEDI, Thelwell reported directly to her. Defs. 56.1 Stmt. ¶ 25; Pl. 56.1 Stmt. ¶ 25.

Thelwell contends that while working under Edidin, she was subjected to a hostile work environment based on her race and national origin. Thelwell does not point to any explicit comments by Edidin, or any other CCRB employee, that refer to her race or national origin. Rather, Thelwell contends that in the approximately one year that Edidin was the DEDI, Edidin stereotyped Thelwell as an "angry black woman, " and subjected her to harsh and differential treatment as a result. Thelwell claims that Edidin did so by using words such as "angry, " "abrasive, " and "unapproachable" to describe Thewell, to Thelwell herself and to others at the CCRB. Thelwell Dep. 100-02. Edidin testified that she only described Thelwell as "difficult to work with, " not angry, abrasive, or unapproachable. Edidin Dep. 206.

Edidin and Thelwell plainly had a rocky relationship, and viewed in the light most favorable to the plaintiff, Edidin treated Thelwell more harshly than other team managers. Johnson testified that when she worked on team four, under a Caucasian supervisor, the team's performance was worse but it received better feedback from Edidin than when she was on team five under Thelwell. Johnson Dep. 345-46. Noah Kalkstein, who was also on team five, testified that at one point team five's docket was audited, and a different standard was applied to team five than to other teams. Kalkstein Dep. 50-52. Thelwell acknowledges that Edidin never issued any negative written evaluation or disciplinary charges regarding Thelwell's performance. Thelwell Dep. 86. However, she claims that Edidin criticized her work, yelled at her, took away some of her managerial duties, and discussed Thelwell negatively with others, including the then-Executive Director of the CCRB, Joan Thompson. Thelwell Dep. 86-88.[1]

Regarding Thelwell's claims that Edidin yelled at her, Thelwell points to at least two incidents that others described as "heated" or confrontational. In March 2012, Thelwell met one-on-one with Edidin, where Thelwell contends that Edidin "berated" her and called her "angry and abrasive." Thelwell Dep. 110. George testified that she overheard some of the meeting, and heard Edidin yell at Thelwell in a disrespectful manner. George Dep. 69-70. Edidin acknowledged that she raised her voice, but only because Thelwell was interrupting her and Edidin had to raise her voice to be heard. Edidin Dep. 199, 202-03. The second incident occurred in June 2012, at a meeting of team managers and executive staff, regarding a dispute about whether Thelwell could hire someone to replace an investigator on maternity leave. Marcos Soler, the Deputy Executive Director for Policy and Strategic Initiative and CCRB's Equal Opportunity Employment Officer, witnessed a "heated confrontation" between Edidin and Thelwell after the other managers had been dismissed, after which Edidin called Thelwell "unreasonable." Soler Dep. 428-29.

Thelwell claims that Edidin attempted to discipline Thelwell and discussed Thelwell negatively in front of Thompson. Thelwell points to Soler's testimony that in June 2012, Edidin asked Thompson to discipline Thelwell for "insubordination, " and that Edidin found Thelwell's "overall demeanor" to be "offensive." Soler Dep. 422-23. Soler believed that Edidin's accusation was related to the "transferring of cases, " and stated that he and Thompson found that there was no basis for discipline. Id. at 424. Thompson, on the other hand, recalled Edidin accusing Thelwell of insubordination after Thelwell had purportedly hung up on Edidin in the middle of a call, but did not believe that Edidin recommended any form of discipline. Thompson Dep. 113. Edidin also denied that she ever attempted to discipline Thelwell formally, but acknowledged that she accused Thewell of insubordination in front of Thompson for purportedly hanging up on her. Edidin Dep. 191-92. Thelwell denied that she ever hung up on Edidin in the way Edidin described. Thelwell Dep. 115-17.

Finally, Thelwell claims that Edidin treated her differently from comparable employees by imposing several forms of informal discipline on her, such as assigning "junior staff" to Team 5, not allowing her to interview one candidate for an investigative position, and removing someone from her team without discussing the reasons with her. Id. at 88, 137. Thelwell also claims that in June 2012, Edidin accused her of "padding the docket, " or assigning more cases to departing investigators. Id. at 118. Thelwell memorialized that accusation in an e-mail the following day, and provided facts to refute the charge. Maduegbuna Decl. Ex. 41.

Generally, Thelwell contends that Edidin favored a group of CCRB employees, all Caucasian, with praise and promotions. See Pl. 56.1 Stmt. ¶¶ 235-47. Thelwell points to two instances where Edidin purportedly promoted two Caucasian investigators over more qualified, non-White individuals. Id . However, neither of these promotions form the basis of Thelwell's own failure to promote claims.


Thelwell alleges that the defendants discriminated against her by giving two promotions to Dennis McCormick, a Caucasian male, instead of her. McCormick joined the CCRB as an investigator in 1996, after receiving his Master's Degree in Criminal Justice. Stodola Decl. Ex. Q. He rose various levels from 1996 through 2005, and in September 2005 he became a team manager. Id . Exs. O, Q. By at least 2010 and until August 2012, he was the team manager for Team 2. Stodola Decl. Ex. P; McCormick Dep. 57.

The only written evaluation of McCormick in the record, one by then-DEDI Joshi for 2010, is fairly glowing. Whereas Joshi gave Thelwell a 3.5 overall rating on the 1-5 scale for the same year, Joshi rated McCormick as 4.5 overall, between "Greatly Exceeds Requirements" (4) and "Exceptional" (5). Stodola Decl. Ex. P. Joshi noted that McCormick is a "skilled manager" with a strong statistical performance, that he "works well with and is respected by his colleagues, " and that he "volunteered to work on a policy recommendation project, " which was successful. Id . Joshi recommended that McCormick continue to work on policy recommendations and suggested that he would "flourish if given more managerial responsibilities." Id . McCormick appears to have interacted with the CCRB Board more than other team managers, including Thelwell. Several CCRB employees, including those friendly with Thelwell, testified in depositions that McCormick spoke with the Board frequently, whereas Thelwell did not, and that McCormick had a "higher profile" with the Board than Thelwell. Daw Dep. 103-04; Johnson Dep. 116-17.


In March 2012, McCormick was given a new title in addition to his then-position as team manager: Director of Investigative Policy ("DIP"). Defs. 56.1 Stmt. ¶ 33; Pl. 56.1 Stmt. ¶ 33. The defendants at times argue that it was not a true promotion, but the new title came with an 8% pay raise, and an e-mail authorizing the change stated that "McCormick will be promoted" to the new position. Maduegbuna Decl. Ex. 46. Thelwell claims that the defendants discriminated against her by offering the position to McCormick instead of her.

The DIP position appears to have been created specifically for McCormick. The position was not posted, McCormick did not submit an application, and since McCormick has subsequently been promoted, there is no one currently occupying the DIP position. Defs. 56.1 Stmt. ¶ 35; Pl. 56.1 Stmt. ¶ 35; McCormick Dep. 176; Thompson Dep. 173. Thompson, who authorized the position as the Executive Director, Maduegbuna Decl. Ex. 46, testified that the DIP position was "adjunct" to McCormick's "continuing in his position as manager, " and that it was "an office title" he was given for doing extra work for the Board on a large amount of CCRB complaints that came in during the Occupy Wall Street movement ("OWS"), as well as some complaints relating to Stop and Frisk. Thompson Dep. 168-69, 174-75. According to Thompson, no one else was considered for the position besides McCormick. Id. at 173-74.

Other witnesses confirmed in their deposition testimony that McCormick was doing additional work and reporting to the Board. Daniel Chu, a Board member, testified that McCormick handled the "unprecedented volume" of complaints that came in during OWS, and "put in countless hours maintaining accurate records and speaking with both Joan Thompson, myself and other members of the board" in working on those matters. Chu Dep. 140-41. In at least one public meeting, the Board recognized McCormick for his OWS work. George Dep. 154-55.

Thelwell claims that all of the investigative teams participated in the disposition of OWS complaints. Thelwell Dep. 236. Thompson acknowledged that OWS complaints were sent to every team, but testified that the cases were "funneled back through [McCormick]." Thompson Dep. 197-98. Thelwell also contends that the "vast majority" of the complaints were duplicates, Pl. 56.1 Stmt. ¶ 111, and points to a "list of OWS cases" with many labeled as duplicates. Maduegbuna Decl. Ex. 33.

There is some dispute as to who the final decision-maker was regarding the creation of the DIP position. Thompson testified that the Board requested the position be created for McCormick, while Chu stated that Thompson made the decision. Thompson Dep. 169, 173; Chu Dep. 157. An e-mail sent to CCRB Human Resources stated that Thompson authorized the promotion. Maduegbuna Decl. Ex. 46, at D1104. Whether the Board or Thompson made the decision, Edidin appeared to have had minimal to no involvement. Although, as DEDI, she was McCormick's direct supervisor at the time in his role as team manager, McCormick Dep. 180-81, Edidin was not informed about the DIP position until after the decision was made, when Thompson told her. Thompson Dep. 201; Edidin Dep. 197. McCormick had previously discussed his interest in policy with Edidin, but they never discussed the DIP position. McCormick Dep. 177-78. McCormick reported to Soler in McCormick's role in the DIP position, and continued to report to Edidin in his role as team manager. Id. at 180-81.


In August 2012, Edidin left her position as DEDI to become the Deputy Executive Director of the Administrative Prosecution Unit. Defs. 56.1 Stmt. ¶ 43. The CCRB Board hired McCormick to replace her as DEDI. Stodola Decl. Ex. Y. Thelwell claims that the defendants discriminated against her based on her race and national origin by promoting McCormick to the DEDI position instead of her.

In May 2012, the CCRB posted an initial job vacancy notice for the DEDI position, which required candidates to have a law degree. Defs. 56.1 Stmt. ¶¶ 44-45. In July 2012, the CCRB posted a revised vacancy notice with the law degree requirement removed. Id . ¶ 47. There is some dispute over why the requirement was removed. Chu testified that Thompson was "less than fully impressed with the pool of applicants, " and wanted to expand the pool by removing the requirement. Chu Dep. 124-25. Thompson, on the other hand, testified that the Board requested the change because they wanted McCormick in the position, and McCormick does not have a law degree and the Board had been working with McCormick "in a very satisfactory manner." Thompson Dep. 187-88. In any event, once ...

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