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Pena v. Board of Elections in City of New York

United States District Court, S.D. New York

February 6, 2017

ISABEL M. PENA Plaintiff,


          BARBARA MOSES, United States Magistrate Judge.

         Before me for report and recommendation is a motion by defendant Board of Elections in the City of New York (BOE) to dismiss plaintiffs Second Amended Complaint (SAC) pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, I respectfully recommend that BOE's motion (Dkt. No. 26) be GRANTED.


         Plaintiff describes herself as a white Latina woman, born in the Dominican Republic, with diabetic neuropathy. SAC (Dkt. No. 24) at 3; id. Ex. 17 (Dkt. No. 24-5), at 2-4.[1]She was employed as a temporary clerk at the BOE Manhattan Borough Office from October of 2010 until December of 2011 (SAC at 4, 6) and again from October of 2013 until December 19, 2014 (id. at 4, 9, 11), when her employment was terminated. Proceeding pro se, she alleges that during the second term of her employment she was discriminated against based on her race, color, national origin, and disability, in violation of 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.C. Admin. Code §§ 8-101 et seq. (NYCHRL), and that her employment was wrongfully terminated in retaliation for, among other things, filing an employment discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC). Id. at 1-2, 5, 11. The non-conclusory facts that plaintiff pleads, however, do not add up to a cognizable claim under either the federal or the New York City antidiscrimination laws. Moreover, since she expressly disclaimed any disability in her EEOC filings, she cannot now pursue a federal claim on that basis.

         I. Procedural Background

         On October 17, 2014, plaintiff filed a Charge of Discrimination with the EEOC, after initially completing an EEOC Intake Questionnaire on July 25, 2014. SAC Ex. 17, at 2-9.[2] On these forms (collectively her EEOC Complaint), plaintiff alleged that her employer discriminated against her on the basis of race, color, and national origin. EEOC Compl. at 2. She did not allege discrimination on any other basis and did not mention diabetic neuropathy or any other medical condition. In response to the question, "Do you have a disability?" plaintiff checked the box marked "no, " id. at 3, and thereafter left all of the questions relating to disability blank. Id. at 5. On October 16, 2015, the EEOC issued a Notice of Dismissal and Right to Sue. Id. Ex. 15 (Dkt. No. 24-4), at 8-9.

         On January 15, 2016, plaintiff commenced this lawsuit pro se. In her original Complaint, (Dkt. No. 2), she asserted claims of discrimination based on race, color, and national origin, as well as a retaliation claim, all pursuant to Title VII. She did not allege discrimination based on disability and did not assert any claims under state or local law.

         On May 2, 2016, plaintiff filed her Amended Complaint (Dkt. No. 17), adding allegations of discrimination on the basis of disability or perceived disability, identifying her disability as diabetic neuropathy, and asserting claims under the NYCHRL as well as Title VII. On May 31, 2016, after a conference with the parties, the Court issued an Initial Case Management Plan and Scheduling Order (Dkt. No. 22) permitting plaintiff to file a Second Amended Complaint no later than June 14, 2016, which she did.

         The Second Amended Complaint asserts the same claims as the Amended Complaint but contains additional detail, much of it set forth in 20 accompanying exhibits. On July 6, 2016, defendant moved to dismiss the Second Amended Complaint in its entirety for failure to state a claim. (Dkt. Nos. 26-31.) On July 28, 2016, plaintiff filed a declaration in opposition to the motion (Dkt. No. 30), and on August 8, 2016, defendant filed its reply papers. (Dkt. No. 31).

         II. Factual Allegations

         In analyzing the sufficiency of plaintiff s allegations pursuant to Rule 12(b)(6), I consider "not only the assertions made within the four corners of the complaint itself, but also those contained in documents attached to the pleadings or in documents incorporated by reference, " Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001), as amended (Apr. 20, 2001), including her EEOC Complaint. Broadly speaking, plaintiffs allegations fall into four categories: (a) complaints about the terms of her employment, and in particular about BOE's failure to raise her wages or change her status from temporary to permanent clerk; (b) complaints relating to a hand-scanning device used as part of the "CityTime" automated employee timekeeping method, which was also the subject of a prior lawsuit by plaintiff against BOE; (c) complaints that she was denied reasonable accommodations for her disability; and (d) allegations related to what she describes as "an incessant campaign of harassment and retaliation" between September 8 and December 19, 2014, which coincided with defendant's receipt of her CityTime lawsuit and her EEOC Complaint and ended with the termination of her employment on December 19, 2014. SAC at 5. For clarity, I first summarize plaintiffs factual allegations in each area, and thereafter consider the allegations specifically relating to discrimination and retaliation.

         A. The Terms of Plaintiffs Employment

         According to plaintiff, "past practice" at BOE "relative to the advancement of temporary clerks" had been to (i) assign them to "leadership position[s], " (ii) promote them from temporary to permanent status based on recommendations from leaders of the local Democratic or Republican Party county committee, and ultimately (iii) "elevate them to Administrative Assistant/Supervisor." Id. at 4.[3] Plaintiff does not describe how quickly a temporary clerk could expect to advance, nor what proportion could expect to succeed at each step. Nonetheless, she alleges that in her case BOE "deviated from past practice" and did so for discriminatory reasons. Id. In particular, plaintiff alleges, between March and December of 2014 she was removed from a leadership position, passed over for a permanent appointment, and denied a seniority-based pay increase of 59 cents per hour. In addition, she was docked eight hours pay on two separate days, and denied an overtime assignment on another day. See SAC at 2-3, 4-11.

         1. Removal as Backup

         Plaintiff identifies the leadership position from which she was removed as "backup" in the Registrations Department of the Manhattan BOE office. She does not further describe the position, or any privileges associated with it, except to note in passing that there was a cubicle "reserved for backup." SAC at 7. Plaintiff was "recruited" for backup on December 17, 2013 by her supervisor, Robin Walker, id. at 4, but was "informed and removed officially" from that position on May 8, 2014, by Gregory Lehman, Chief Clerk of the Manhattan office. EEOC Compl. at 2, 7; see also SAC at 4-5 (alleging that she was removed as back up on a different date, May 23, 2014). Plaintiff was told that "Greg wants a backup who's a permanent already, " SAC at 4, but believes she lost the backup position "to justify not appointing me to Permanent Status" later in the year. EEOC Compl. at 7. Plaintiff was replaced as backup by Terri Drake, a permanent clerk. Id. Plaintiff does not provide any information about Drake's race, color, or national origin, but does acknowledge that at the time she became backup Drake had been "working as Administrative Assistant without the official title and pay for about 1-1/2 years." Id. Plaintiff also acknowledges that "[m]ost coworkers did not want me to be backup." SAC at 5, and "did not want to follow my direction." EEOC Compl. at 9.

         2. Failure to Elevate to Permanent Clerk

         Plaintiff applied for permanent status on March 2, 2014, "by sending an email to the Chairman of the [Manhattan] Republican Party, Daniel Isaacs." SAC at 4. According to plaintiff, Republican District Leader Frank Scala recommended her for the promotion, id., and followed up by having "conversations" about her with Chairman Isaacs and Chief Clerk Lehman. Id. at 4-5. Thereafter, a Performance Evaluation Review dated June 9, 2014, concluded that plaintiffs job performance was "above average." SAC Ex. 4 (Dkt. No. 24-2), at 2-5. However, plaintiff was "denied promotion" twice: first on June 17, 2014, when two "similarly situated individuals, " Tirsia Fernandez and Robert Scott, were promoted to permanent status, and again on July 8, 2014, when two other "similarly situated individuals, " Carolyn Gans and Pernell Vassell, were promoted. SAC at 4, 6.

         Plaintiff provides additional information about these four individuals in a chart attached as Exhibit 2 to her Second Amended Complaint (Dkt. No. 24-1, at 6-7), and in her EEOC Complaint. Fernandez had been a temporary clerk since 2009, and became a backup to a supervisor in 2014, before she was elevated to permanent status in April 2014. EEOC Compl. at 8-9.[4] Plaintiff does not expressly allege Fernandez's race, color, or national origin, but notes that she speaks Spanish. Id. at 9. Scott had been a temporary clerk since 2009, and became an acting administrative assistant on an unspecified date in 2014 before he was given permanent status on July 8 of that year. Id.; SAC at 6. Scott is African-American. EEOC Compl. at 8. Gans had been a temporary clerk since 2010. Id. She is white. Id. There is no allegation that she held any kind of leadership position before obtaining permanent status in 2014. Id. Vassell had been a temporary clerk since 2009. Id. At some point (plaintiff does not provide a date), he became a backup, and was then given permanent status in 2014. SAC Ex. 2, at 6. Vassell is African-American. EEOC Compl. at 8.[5]

         3. Lost Wages

         On May 16, 2014, and again on November 10, 2014, plaintiff lost eight hours' pay because she failed to punch in that morning. SAC at 5, 8; id. Ex. 5 (Dkt. No. 24-2, at 7). She believes that it was unfair to dock her wages when, she alleges, she was "on camera" and there were witnesses to her arrival at work. SAC at 5, 8.

         4. Denial of Hourly Pay Increase

         In June of 2014, Plaintiff requested a pay increase from $11.90 to $12.49 per hour. SAC at 6, 11. She believed she was entitled to the increase because she had been (or would be shortly) employed at BOE for 24 months in the aggregate and was eligible for "the $12.49 rate increase for incumbents" set forth in a collective bargaining agreement (Agreement) between BOE and Local 1183 of the Communications Workers of America (CWA). Id. at 6, 9, 11. Plaintiff points to section 2(b) of the Agreement, which states, "Upon completion of two (2) years of service [newly hired] employees shall be paid the indicated 'incumbent minimum' for the applicable title that is in effect on the two (2) year anniversary of their original date of appointment as set forth in the CWA, Local 1183 Agreement." SAC Ex. 20 (Dkt. No. 24-7), at 3.[6]

         BOE denied her the rate increase on the ground that two consecutive years of service were required to qualify. SAC at 6, 9. Plaintiff disputes this point. It was her "understanding" that "accumulated time with the City is never lost." Id. at 6. She points out that her "city start date of service October 11, 2010 never changed, " id. at 9, meaning that her CityTime "profile" continued to show a "City Start Date" of "10/11/2010" even though she left the BOE in December 2011 and returned 22 months later in October 2013. SAC Ex. 13 (Dkt. No. 24-3), at 11.

         There is no indication in the pleadings that plaintiff ever discussed this issue with her union representatives or sought a ruling through the grievance process outlined in the Agreement. Instead, she alleges generally that BOE "adjust[ed] the rates of other employees on a timely basis." SAC at 9. However, she does not identify any other employee - of any race, color, or national origin - who was given the "incumbent" raise after two aggregate years of employment interrupted by a lengthy break in service. See SAC Ex. 2, at 6-7.

         5. Denial of Overtime on July 18

         On July 18, 2014, plaintiff was "denied access to overtime" by her supervisor, Walker. When asked why she was not getting any overtime that day she was told "they only wanted a few." SAC at 6. Plaintiff provides no further details regarding this event.

         B. CityTime

         The CityTime system is an "automated timekeeping system, " used widely at New York City agencies, under which employees "generally 'punch-in' by using a data collection device such as a hand scanner or an internal web clock, which automatically record attendance times pending the input of a personalized code and/or password." DOI Rep. at 11 & n.20. According to the DOI Report, "time abuse" was a major disciplinary problem at BOE, where City Time was not yet in use. As late as 2013 the agency still relied on "punch cards and paper leave slips." Id. at iii, 11. DOI recommended, among other things, that BOE "use an automated time-keeping system." Id. at 48.

         BOE implemented CityTime in the fall of 2014, prompting plaintiff to file a lawsuit. She does not attach any of her own papers from that lawsuit, but she does attach an affirmation, dated September 5, 2014, filed by BOE in opposition to her application for a temporary restraining order and preliminary injunction to prevent BOE from requiring her to use a CityTime hand scanning device. SAC Ex. 18 (Dkt. Nos. 24-5 and 24-6). BOE asserted, among other things, that no fingerprint data would be collected but that, in any event, it "intends to promulgate a policy that will allow an employee to seek exemption from the hand scanning requirement and, in the alternative, use a computer terminal to sign into work." Id. ¶ 11.[7]

         On December 4, 2014, plaintiff "requested exemption from [ ] using biometric clock, " SAC at 8; see also Id. Ex. 19 (Dkt. No. 24-6, at 5). On December 5, 2014, plaintiff was called in to a meeting with Acting Deputy Alvin Samuels, Administrative Associate Trevor Worrell, and two union representatives, during which Samuels "read an email in his possession" from BOE Executive Director Michael Ryan, "basically relating to me of serious consequences to follow including termination if I continued opposing the hand scanner." SAC at 10. Plaintiff asked for a copy of the email but was given one that "did not match the wording read from the email by Mr. Samuels at the meeting." Id. Plaintiff attaches a copy of an email from Ryan dated December 8, 2014 - three days after the meeting she describes - which says nothing about serious consequences or termination. Instead, it states, "An individual employee's preference does not qualify as adequate reason to alter the agency-wide method for accounting for time records. As such, the initial determination to deny Ms. Pena's request remains unchanged." SAC Ex. 11 (Dkt. No. 24-3, at 7).

         From December 8 to 19, 2014, plaintiff "kept track of [her] time on outlook calendar" rather than use City Time. SAC at 10. Plaintiff was never paid for those two weeks. Id.

         C. Reasonable Accommodations

         Although plaintiff denied any disability in her EEOC Complaint, she alleges in the present lawsuit that she was denied reasonable accommodations for her diabetic neuropathy on October 21, 2014. SAC at 2-3, 7. On that day plaintiffs supervisor, Walker, informed her that the Registration unit would be working at the Voting Machine Facility (VMF) for several days. SAC Ex. 9 (Dkt. No. 24-3, at 3). Plaintiff said that she could not perform the physical work required at the VMF, which she describes as "load[ing] the supply carts, stuff[ing] the gray transport bags and review[ing] poll list books." Id. Walker then told plaintiff that she would not be able to work overtime "on the days we are located at the VMF." Id.; see also SAC at 7. Plaintiff asked about overtime work "with Poll Worker, " presumably another unit at BOE. SAC Ex. 9. Walker responded, "No the overtime is at the VMF." ...

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