United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, U.S. DISTRICT JUDGE
Stacey Pompey-Howard commenced this action against defendant
New York State Education Department (“NYSED”)
alleging discrimination on the basis of race and retaliation
in violation of Title VII, 42 U.S.C. § 2000e et
seq., 42 U.S.C. § 1981, and the New York State
Human Rights Law (“NYSHRL”), N.Y. Exec. Law
§ 296. Dkt. No. 1 (“Complaint”). Presently
before the Court is NYSED's motion for summary judgment.
Dkt. No. 35 (“Motion”); see also Dkt.
No. 35-1 (“Defendant Statement of Material
Facts”); Dkt. No. 35-2 (“Defendant
Memorandum”); Dkt. No. 44 (“Response”);
Dkt. No. 47 (“Plaintiff Statement of Material
Facts”); Dkt. No. 50 (“Reply”). For the
reasons that follow, NYSED's Motion is granted.
is an African-American woman who works for NYSED. Def. SMF
¶¶ 1-2; Pl. SMF ¶¶ 1-2. She began working
for NYSED on April 9, 2009, as a grade 18 Senior Professional
Conduct Investigator with the Office of School Personnel
Review and Accountability (“OSPRA”). Def. SMF
¶¶ 2-3; Pl. SMF ¶¶ 2-3. Her job entailed
“investigating allegations of teacher misconduct,
gathering evidence, preparing investigative reports,
interviewing witnesses, [and] assisting attorneys in
preparing for administrative hearings.” Dkt. No. 46
(“Plaintiff Declaration”) ¶ 4.
2012, NYSED created the Testing Security Unit
(“TSU”) to investigate misconduct related to the
administration of state standardized tests. Def. SMF ¶
5; Pl. SMF ¶ 5; Resp. at 2 n.1. In April 2012, Howard
applied for a promotion to a grade 23 Supervising
Professional Conduct Investigator position at the TSU. Def.
SMF ¶ 4; Pl. SMF ¶ 4. She did not receive the
promotion, but accepted an offer for a lateral transfer to a
grade 18 Senior Professional Conduct Investigator position at
the TSU. Def. SMF ¶¶ 10, 14-16, 19; Pl. SMF
¶¶ 10, 14-16, 19. Howard alleges that the director
of OSPRA and the TSU, Tina Sciocchetti, promised to promote
her to the next available grade 23 position at the TSU as a
condition of Howard's acceptance of the grade 18
position. Def. SMF ¶¶ 8, 10-11; Pl. SMF
¶¶ 8, 10-11.
next grade 23 position opened up in August 2014, and Howard
applied again for the position. Def. SMF ¶¶ 34-35;
Pl. SMF ¶¶ 34-35. Of the twenty-six applicants,
eight, including Howard, were selected for interviews. Def.
SMF ¶¶ 35-36; Pl. SMF ¶¶ 35-36. The
interviews were conducted by three supervisors, Bart Zabin,
Leroy Tario, and Maria Guzman. Def. SMF ¶ 37; Pl. SMF
¶ 37. Applicants were asked a standard set of questions
and the interviewers scored each applicant from one to five
based on their answers. Def. SMF ¶ 38; Pl. SMF ¶
38; Dkt. No. 35-19 (“Tario Declaration Exhibit
A”) at 2. The successful applicant, Keith Bergmann,
obtained a score of 175-the highest of all the
applicants-while Howard scored a 145. Tario Decl. Ex. A, at
1. The interview scores were tallied incorrectly, but the
mistake affected Bergmann and Howard's scores equally and
so it did not impact them. Id.; Reply at 3 n.1; Def.
SMF ¶¶ 39-40; Pl. SMF ¶¶ 39-40. The grade
23 position was offered to Bergmann. Def. SMF ¶ 45; Pl.
SMF ¶ 45.
believed that she was more qualified for the position than
Bergmann. Pl. Decl. ¶ 22. Howard had been employed for
five years at grade 18 when she applied for the grade 23
position. Dkt. No. 46-4 (“Plaintiff resume”).
Before that, Howard performed investigations as a Special
Agent at the Office of the Inspector General from 2005 to
2009. Id. And from 2003 to 2005, Howard was a
probation officer for Albany County, though it is not clear
from the record whether she performed investigative work
there. Id. Howard also holds a bachelor's degree
in criminal justice. Dkt. No. 46-1 (“Plaintiff
Deposition”) at 9:17-23. Howard admitted to having
little “direct” supervisory experience.
Id. at 64:18-25, 65:1-25. Assuming that Howard's
time as a probation officer was applicable to the grade 23
position, she had twelve years of experience in her field.
being hired at the TSU, Bergmann had worked at the New York
State Office of Children and Family Services for almost
eleven years. Dkt. No. 46-5 (“Bergman resume”).
While there, Bergmann was an Investigative Auditor
responsible for conducting investigations and had
“significant” experience interviewing children.
Id.; Def. SMF ¶ 43; Pl. SMF ¶ 43. He was
later promoted to Assistant Chief of Investigations, which
required him to supervise and train investigators.
Id. Before that, Bergmann had four years of
experience as a Child Protective Services Investigator in
Rensselaer County. Id. Bergmann holds bachelor's
degrees in criminal justice and sociology. Id. All
together, Bergmann had fifteen years of applicable
experience. Id. Ultimately, the interview committee
recommended Bergmann for the position, and the decision
received final approval from Director Sciocchetti and her
supervisor John D'Agati. Def. SMF ¶¶ 38, 47;
Pl. SMF ¶¶ 38, 47.
felt wronged by the hiring decision and stated in an email to
Cassandra Allison of Human Resources (“HR”) on
January 5, 2015 that “[t]he only thing that is going to
make me happy is to be rightfully promoted to my grade 23
position.” Dkt. No. 35-8 (“Allison Declaration
Exhibit E”) at 3. In a separate letter dated January
28, 2015 Howard said, “I will fight this department
until I receive a remedy that's delivered JUSTLY. . . . I
want my promotion that was stolen.” Dkt. No. 35-10
(“Allison Declaration Exhibit G”) at 2. Howard
also claimed in an email that during her interview, Tario
said she was “the most qualified, ” and that he
had previously stated that “he could not understand how
[NYSED] would not want to promote and [sic] African American
Female [sic] into a grade 23 position.” Allison Decl.
Ex. E, at 2. Howard also cited to Director Sciocchetti's
alleged promise to promote her to the next grade 23 position.
Id. Howard reached out to Director Sciocchetti and
HR to complain about the hiring decision. Id. at
2-3; Dkt. No. 35-5 (“Allison Declaration Exhibit
B”) at 1. In those emails, Howard asserted that she was
not hired for the position because of her poor relationship
with another employee, Lynn Gretschel, a grade 23 at the TSU.
Allison Decl. Ex. E, at 2. Although Gretschel was not on the
hiring committee, Howard believed that Gretschel blocked her
promotion. Id.; Def. SMF ¶ 37; Pl. SMF ¶
37. In her many emails with Allison, Howard detailed her
issues with Grestchel, but she did not claim that she lost
the promotion because of race or that her issues with
Grestchel were related to race. Allison Decl. Ex. E, at 2-3;
Dkt. No. 35-9 (“Allison Declaration Exhibit F”).
Howard first told Allison that she believed she was not
promoted because of her race about a month after her initial
contact with HR. Dkt. No. 35-3 (“Allison
Declaration”) ¶¶ 21, 23-24.
opened an investigation into the hiring decision.
Id. ¶ 17. During the investigation, Howard
provided HR with copies of work-related emails between her
and Gretschel as proof that Gretschel prevented her
promotion. Id. ¶ 21. None of these emails
suggest that Howard's issues with Gretschel were related
to race. Id. ¶ 22; Allison Decl. Ex. G. During
a phone call with another member of HR, Anne Wieske, Howard
expressed a desire to file a restraining order against
Gretschel. Def. SMF ¶ 90; Pl. SMF ¶ 90. Wieske
asked Howard if she feared for her safety. Def. SMF ¶
89; Pl. SMF ¶ 89. Howard responded that she was not
concerned for her safety, but that she anticipated an
altercation with Gretschel outside of work. Def. SMF ¶
89; Pl. SMF ¶ 89; Pl. Dep. 79:13-25, 80:1-25. Winske
asked Howard to come to her office that afternoon to discuss
her concerns. Dkt. No. 35-22 (“Anne Wieske Declaration
Exhibit A”) at 1. At the meeting, Howard and Wieske
discussed Howard's issues with Gretschel. Id.
Howard left the meeting feeling that her issues had not been
resolved. Id. at 3. In response, Howard called the
police to the HR office to file a complaint against Gretschel
and then called Wieske to inform her that she had called the
police. Id. Pl. Dep. 134:2-11. When an officer
arrived, Howard, Wieske, and Allison all met with him. Wieske
Decl. Ex. A, at 6. The officer asked Howard whether she
feared for her safety, and she replied that she did not.
Id. The officer then informed Howard that the police
do not normally handle such issues and suggested that the
matter be handled internally through HR, but that she was
welcome to file a police report if she liked. Id. HR
concluded its investigation into Howard's allegations of
discrimination and found that the hiring decision was not
discriminatory. Allison Decl. ¶ 23.
claims that she began to experience retaliation soon after
she informed Allison of her belief that she did not receive
the promotion because of her race. Def. SMF ¶¶
77-78; Pl. SMF ¶¶ 77-78. Primarily, Howard alleges
that her supervisors exaggerated workplace incidents to pad
her personnel file so that she could be placed on involuntary
leave and forced to undergo a psychological evaluation. Resp.
at 6. Howard also claims that her coworkers placed mouse
droppings on her desk, slammed doors to disturb her, and that
her supervisors, Tario and Gretschel, spied on her in a
parking lot to catch her leaving work early. Pl. Dep. at
79:2-8, 143:5-25; Wieske Decl. Ex. A, at 2. NYSED argues that
the fact that Howard would accuse her coworkers of such
strange behavior is additional evidence of her erratic
behavior. Def. Mem. at 10-11.
alleges that in March 2015, Director Sciocchetti falsely
accused her of faking an injury to get out of work. Resp.
6-7; Def. SMF ¶¶ 82-83; Pl. SMF ¶¶ 82-83;
No. 35-16 (“Sciocchetti Declaration”) ¶ 23;
Dkt. No. 46-8 (“Medical Records”) at
Director Sciocchetti testified that Howard packed up all of
her personal belongings on a Friday and subsequently failed
to report to work the next week. Sciocchetti Decl. ¶ 23.
When Howard returned to work, she wore a wrist splint and a
shoe boot, and she filed a workers' compensation claim.
Id. Howard asserts that her injuries were real. Def.
SMF ¶ 82; Pl. SMF ¶ 82. But she has not disputed
that she packed her desk up on a Friday and failed to report
to work without explanation the following week. Resp. at 6-7.
Sciocchetti also testified that on a separate occasion,
Howard entered Sciocchetti's office after hours without
permission and went through her personal belongings.
Sciocchetti Decl. ¶ 23. Howard does not dispute that she
took a personal photograph belonging to Sciocchetti from the
office and made a photocopy to keep for herself. Id.
time later, Howard's supervisor, Tario, received a
complaint from an assistant superintendent and a school
principal about Howard's behavior during a school
monitoring visit. Dkt. No. 35-20 (“Tario Declaration
Exhibit B”) at 1-2. Howard's job required her to
conduct observations at schools to ensure compliance with
state testing requirements. Def. SMF ¶ 92; Pl. SMF
¶ 92; Resp. at 6. It is undisputed that on the day of
the monitoring visit Howard arrived at the school without
proper NYSED identification and presented her driver's
license to gain access to the building. Def. SMF ¶ 92;
Pl. SMF ¶ 92; Tario Decl. Ex. B, at 1-2. The principal
also stated that Howard demanded that the classroom doors be
unlocked and the windows be uncovered-a testing
requirement-but this was against the school's security
policy. Tario Decl. Ex. B, at 2. The principal thought Howard
was unprofessional and that her behavior frightened the
students. Id. Howard maintains that the complaint
was exaggerated and that her behavior was appropriate given
the school's testing violations. Def. SMF ¶¶
92, 94; Pl. SMF ¶¶ 92, 94. After this incident,
NYSED's HR department began to consider placing Howard on
leave until a psychological evaluation could be performed.
Def. SMF ¶ 95; Pl. SMF ¶ 95. Howard disputes this
and claims that her placement on leave was entirely
attributed to NYSED's retaliation. Def. SMF ¶ 95;
Pl. SMF ¶ 95.
2015, Howard and Kristen Little, an attorney at the TSU, got
in a shouting match. Resp. at 6. Howard alleges that the
disagreement was mutual, “that Little was shouting
too-i.e, that is was a ‘shouting
match.'” Resp. at 6. Howard was placed on leave
pending a psychological evaluation the following day. Def.
SMF ¶¶ 96-97; Pl. SMF ¶¶ 96-97. No
disciplinary action was taken against Little. Pl. Decl.
¶ 25; Resp. at 6. Howard alleges that this discrepancy
in punishment is evidence of retaliation. Resp. at 14. Howard
was on involuntary leave for over two months before she
received the results of the psychological examination, which
cleared her for work. Def. SMF ¶¶ 96-97, 105; Pl.
SMF ¶¶ 96-97, 105. Following Howard's return to
work, she was transferred from the TSU to OSPRA at her own
request. Def. SMF ¶¶ 104-105; Pl. SMF ¶¶
filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) on October 5, 2015, alleging
discrimination and retaliation on the part of her employer.
Compl. ¶ 3. Howard initiated this lawsuit on October 30,
2015. Id. She received a right-to-sue letter from
the EEOC on November 30, 2015, and amended her Complaint on
December 2, 2015, to reflect the receipt of that letter. Dkt.
No. 11 (“Amended Complaint”) ¶ 3. The
Amended Complaint sets forth two causes of action under Title
VII. Id. ¶¶ 26, 29. First, Howard claims
that her employer failed to promote her because of her race.
Id. ¶ 26. Second, she argues that her employer
retaliated against her for filing a discrimination complaint
with HR. Id. ¶ 29. On March 28, 2017, ...