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Pompey-Howard v. New York State Education Department

United States District Court, N.D. New York

July 28, 2017





         Plaintiff 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.


         A. Factual Background

         Howard 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.

         In 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.

         The 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.

         Howard 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. Pl. resume.

         Before 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.

         Howard 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.

         HR 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.

         Howard 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.

         Howard 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 10.[1] 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.

         Some 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.

         In June 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 ¶¶ 104-05.

         B. Procedural History

         Howard 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. ΒΆ 29. On March 28, 2017, ...

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