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Benjamin v. Terrero

United States District Court, S.D. New York

January 13, 2017

WILSON TERRERO, individually, and as an aider and abettor, and CHRISTOPHER JOHNSON, individually and as an aider and abettor, Defendants.


          Vincent L. Briccetti United States District Judge

         Plaintiff 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.

         Before the Court is the remaining defendants' motion for summary judgment. (Doc. #76). For the reasons set forth below, the motion is GRANTED.

         The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.


         I. Factual Background

         The parties have submitted briefs, statements of facts, and declarations with supporting exhibits, which reflect the following factual background.

         A. The Parties

         Plaintiff 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.

         B. Plaintiff and Johnson's Working Relationship

         Each 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.[1] 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.

         Shortly 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.

         Due to 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.

         Johnson 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.

         C. Alleged May 2012 Complaint to Majority Leader Terrero

         Plaintiff 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 ¶ 20).

         Specifically, 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.”[2] (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.

         Terrero 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).

         When 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).

         Plaintiff 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?
A. No.

(Id. at 58:22-59:5).

         D. June 2012 Incident with Councilman Lesnick

         On the 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.” (Id.).

         Around 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. (Id.).

         Plaintiff 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 off.[3]

         Plaintiff 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 ...

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