United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
Nicole Benjamin brought this action pursuant to 42 U.S.C.
§§ 1981 and 1983, alleging employment
discrimination and retaliation against defendants City of
Yonkers, Wilson Terrero, Charles Lesnick, and Christopher
Johnson. On November 24, 2014, the Court dismissed all claims
except plaintiff's retaliation claim against defendants
Terrero and Johnson.
the Court is the remaining defendants' motion for summary
judgment. (Doc. #76). For the reasons set forth below, the
motion is GRANTED.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
parties have submitted briefs, statements of facts, and
declarations with supporting exhibits, which reflect the
following factual background.
Nicole Benjamin, an African-American woman, worked as a
legislative aide for the Yonkers City Council for
approximately six months, from January 3, 2012, until July 9,
2012. Plaintiff was hired by defendant Johnson, a member of
the Yonkers City Council, and assigned to his office.
Defendant Terrero was also a member of the Yonkers City
Council, and served as the Democratic Majority Leader.
Terrero's chief of staff during 2012 was Nerissa Vitora
(now known as Nerissa Pena). While defendants Terrero and
Johnson claim plaintiff reported directly to Johnson,
plaintiff claims she reported to Terrero, Johnson, and
Vitora. Plaintiff was the sole aide assigned to Johnson's
office and Johnson supervised no employees other than
Plaintiff and Johnson's Working Relationship
City Council member had particular requirements and
expectations for their legislative aides. When plaintiff
began her employment, she and Johnson agreed her hours would
be 9:30 a.m. to 5:00 p.m. and as needed. Plaintiff's job
also required her to be available for meetings and community
events, some of which took place during the evening and on
weekends. Johnson served as the Chair of the City
Council's Budget Committee, which meant plaintiff had
some duties, particularly during the budget season, unique to
her position as Johnson's legislative aide. According to
defendants, budget season began on April 15, when the Mayor
introduced a proposed budget. The City Council members then
reviewed the proposed budget, held hearings throughout the
month of May, and were required to pass a budget by June 1.
after beginning her employment in January 2012, defendant
Johnson told plaintiff she would have a six-month evaluation
period. Throughout plaintiff's employment, plaintiff and
Johnson had a difficult working relationship characterized by
miscommunications regarding expectations and the scope of
plaintiff's job responsibilities. Plaintiff claimed to
lack a clear understanding of what her job entailed and at
times questioned directives from Johnson.
repeated miscommunications between Johnson and plaintiff,
Johnson asked plaintiff to prepare a list of what she
perceived her job duties to be. On June 11, 2012, plaintiff
and Johnson had an email exchange regarding plaintiff's
list of job responsibilities and a planned discussion to
address Johnson and plaintiff's issues. In an email to
plaintiff, Johnson explained he wanted plaintiff to produce
the list because they were “missing each other”
and their working relationship was “not working.”
(Raimondi Decl. Ex. M). Plaintiff refused to provide a list
of her job duties, saying she did not want to be
“presumptuous” and she was “not comfortable
managing up.” (Id.). Shortly following the
June 11, 2012 email exchange, Johnson gave plaintiff a
written list of her job responsibilities.
claims he and plaintiff did not work well together, and it
appeared to him as though plaintiff was resentful of the
tasks he asked her to perform. The declarations of Terrero
and Vitora support Johnson's assertions that he and
plaintiff did not work well together.
Alleged May 2012 Complaint to Majority Leader
claims similarly-situated white legislative employees were
not required to attend “events at night, to work on
Sundays, to have pay docked when they were genuinely sick, or
to go over their immediate supervisors' heads to simply
ask for time off.” (Wotorson Decl. Ex. 1 ¶ 13).
Plaintiff further claims she “reasonably complained
about this” to Terrero and Terrero informed her he had
escalated her complaints about Johnson's
“comp” practices to the Commissioner of Human
Resources, Paula Redd. (Id. ¶ 14). Plaintiff
also claims she raised the issue of disparate treatment from
other similarly-situated white legislative employees with
Johnson who replied that compensatory time is “at the
pleasure of the principal.” (Wotorson Decl. Ex. 1
plaintiff claims she complained to Terrero in late May 2012
that she “was being forced to work much later than
similarly situated legislative employees, who were white,
without any additional compensation.” (Wotorson Decl.
Ex. 1 ¶ 12). According to plaintiff, she used the term
“disparate treatment” in explaining her
situation. (Id.). Based on Terrero's physical
expressions, plaintiff believed Terrero understood her use of
the term “disparate treatment” had racial
discrimination “overtones.” (Id.).
Plaintiff claims she explained to Terrero that one or more
“white” legislative employees had openly refused
to work late hours or on weekends without “comp
time.” (Id.). The only evidence supporting
plaintiff's contention that she complained to Terrero in
May 2012 regarding racial discrimination is an affidavit
submitted by plaintiff in opposition to defendants'
motion for summary judgment.
denies having a conversation with plaintiff in or around May
2012, and both Terrero and Johnson deny speaking about
plaintiff in or around May 2012. Plaintiff does not refer to
the alleged conversation with Terrero in any of the emails
she sent contemporaneously with her termination or in her
complaint filed with the New York State Division of Human
Rights (discussed below), and the account of plaintiff's
alleged conversation with Terrero in plaintiff's
affidavit contradicts her deposition testimony. Plaintiff did
not identify any comparators by race during her deposition,
which plaintiff explains is because she “was never
asked.” (Wotorson Decl. Ex. 1 ¶ 12).
asked at her deposition if she remembered what she said to
Terrero concerning Johnson, plaintiff said, “I
don't particularly recall.” (Raimondi Decl. Ex. T,
57:8-18). When asked about the subject matter of her
complaints to Terrero, plaintiff said, “the same things
that I just told you before about the comp time and the hours
and the treatment.” (Id. at 57:25-58:3).
also gave the following testimony:
Q. Okay. Other than telling Mr. Terrero and Mr. Larkin that
he wasn't giving you comp time and you were working
longer hours than others and that he said demeaning things to
you, did you say anything else to either one of them?
(Id. at 58:22-59:5).
June 2012 Incident with Councilman Lesnick
evening of Thursday, June 21, 2012, plaintiff attended a gala
on behalf of Councilman Johnson. During the event and while
she was in the restroom, plaintiff was called to the stage to
present a proclamation on behalf of State Senator Andrea
Stewart-Cousins. Plaintiff claims when she returned from the
restroom, Councilman Charles Lesnick “physically
grabbed [plaintiff] and attempted to physically force [her]
to go on to a public stage.” (Wotorson Decl. Ex. 1
¶ 4). Plaintiff further alleges the touching was
“offensive” and “unwelcome.”
8:30 p.m. that evening, plaintiff sent Johnson a text message
regarding the incident. Plaintiff told Johnson that Lesnick
tried to drag her to the podium, but she told Lesnick she was
not going to be “obsequious” and force herself on
the stage. (Raimondi Decl. Ex. L). Johnson replied,
“You weren't to present. Sorry you were in that
position.” (Id.). Plaintiff did not complain
further regarding the incident and said, “It
happens.” (Id.). Plaintiff then said she would
be out the next day because she needed to catch up with her
daughter and “recharge.” (Id.). Johnson
responded that plaintiff needed to give him advance notice of
days off. Plaintiff remarked how little time she had taken
off, that she had “dragged in” with a smile every
day, and told Johnson to enjoy his weekend. Johnson replied
that plaintiff had taken off plenty of time without his
knowledge and he told plaintiff, “See you
tomorrow.” (Id.). Plaintiff replied she needed
a “mental health day” and had already promised
her daughter a play date. (Id.). Johnson said
“we talked about this last week” and told
plaintiff the short notice of the day off was insufficient.
claims she then sought and obtained permission to take the
day off from Vitora, Terrero's chief of staff. Vitora
denies giving plaintiff permission to take the day
did not come to work on Friday, June 22, 2012. She later
tried to take the day as a sick day. Johnson told Marie
Neumayer, the employee responsible for payroll, that the time
off was not approved, plaintiff ...