United States District Court, S.D. New York
ISABEL M. PENA Plaintiff,
BOARD OF ELECTIONS IN THE CITY OF NEW YORK, Defendant.
REPORT AND RECOMMENDATION TO THE HON. VALERIE E.
BARBARA MOSES, United States Magistrate Judge.
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
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.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.
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. 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.
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.
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.
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).
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.
The Terms of Plaintiffs Employment
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. 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.
Removal as Backup
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.
Failure to Elevate to Permanent Clerk
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.
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. 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
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.
Denial of Hourly Pay Increase
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
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
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.
Denial of Overtime on July 18
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.
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.
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.
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).
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.
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."