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Edwards v. Rochester Institute of Technology

United States District Court, W.D. New York

March 28, 2018



          HON. FRANK P. GERACI, JR., United States District Court Chief Judge


         Plaintiff Sharon Edwards commenced this action alleging racial discrimination against her former employer, Rochester Institute of Technology (“RIT”) in violation of Title VII of the Civil Rights Act, 42 U.S.C. §2000e, et seq., the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq. (“NYSHRL”), and 42 U.S.C. § 1981.[1] She also alleges gender discrimination in violation of Title VII with respect to her termination only. ECF Nos. 1, 93.

         Currently pending before the Court is Defendants' Motion for Summary Judgment. ECF No. 132. Having considered the moving papers, the record evidence, and the applicable law, the Court grants Defendants' motion and dismisses the Amended Complaint in its entirety.


         Plaintiff commenced this action on September 27, 2010. ECF No. 1. Before Defendants filed an Answer, Plaintiff filed an Amended Complaint dated October 8, 2010. ECF No. 2. At the time this action was commenced, Plaintiff was represented by Christina Agola, Esq., but Ms. Agola withdrew as counsel in December 2011. ECF No. 15. Plaintiff proceeded pro se until December 4, 2012, when Plaintiff's current attorney, Prathima C. Reddy, Esq., entered a Notice of Appearance. ECF No. 58.

         By that time, discovery was completed and the deadline to file dispositive motions was December 17, 2012. ECF No. 56. Defendants filed a summary judgment motion on December 17, 2012. ECF Nos. 59-60. Plaintiff opposed the motion and moved to amend the complaint and to reopen discovery. Plaintiff also filed a separate motion to stay the determination of the summary judgment motion pending further discovery regarding Plaintiff's termination. ECF Nos. 68, 72. By Order dated August 22, 2013, Magistrate Judge Marian W. Payson granted Plaintiff's motion to amend and permitted Plaintiff to add new claims for racial discrimination and retaliation based on her termination; permitted an additional claim for gender discrimination under Title VII based on her termination only; denied Plaintiff's request to add additional claims of gender discrimination under the NYSHRL; and permitted Plaintiff to conduct limited discovery regarding her termination. ECF No. 90.

         Plaintiff filed her Second Amended Complaint on September 23, 2013 (ECF No. 93), which contains six separate causes of action: (1) the first cause of action, asserted against RIT and Dr. Boyd, alleges discrimination in the form of disparate treatment and unlawful termination based on race in violation of 42 U.S.C. § 1981; (2) the second cause of action, asserted against RIT under Title VII, alleges discrimination based on race in the form of disparate treatment and unlawful termination; and discrimination based on gender solely based on her termination; (3) the third cause of action, asserted against RIT, alleges discrimination based on race in the form of disparate treatment and unlawful termination in violation of the NYSHRL; (4) the fourth cause of action, asserted against RIT and Dr. Boyd, alleges retaliation in violation of 42 U.S.C. § 1981; (5) the fifth cause of action, asserted against RIT, alleges retaliation in violation of Title VII; and (6) the sixth cause of action, asserted against RIT, alleges retaliation in violation of the NYSHRL. Id.

         In a Decision and Order dated September 26, 2013, this Court granted Plaintiff's motion to stay the summary judgment proceedings pending the completion of further discovery on Plaintiff's wrongful termination claims. ECF No. 94. Defendants withdrew their prior motion for summary judgment. ECF No. 130.

         The current pending motion addresses all of the claims raised in Plaintiff's Second Amended Complaint. ECF No. 132. In support of their motion, Defendants submit a Statement of Undisputed Facts with Appendix Exhibits 1 through 28 (“Def. Appx. Ex.”); Memorandum of Law (“Def. Mem.”); Attorney Declaration (“Atty. Decl.”); and Declaration of Tamara Gouger (“Gouger Decl.”) with Supporting Exhibits 1 through 10. ECF Nos. 132-136.

         Plaintiff submitted a Response to Defendants' Statement of Undisputed Facts; Memorandum in Opposition to Defendants' Motion; Attorney Declaration with Supporting Exhibits 1 through 29; and Plaintiff's Affidavit with Supporting Exhibits 1 through 100. ECF Nos. 153-180.

         On April 28, 2017, the same day Defendants' Reply was due, Plaintiff filed additional Supporting Exhibits 101 through 105, which appears to be a corrected filing as those exhibits were cited in her Memorandum (ECF No. 177 at 33) but not included in her Opposition papers. ECF No. 183.

         Following Defendants' Reply on April 28, 2017 (ECF No. 184), and after receiving permission from the Court to file a limited Sur-Reply (ECF No. 187), Plaintiff filed an Amended Affidavit by Plaintiff; an Attorney Declaration in Support of Sur-Reply with Supporting Exhibit 1; and Memorandum of Sur-Reply. ECF Nos. 188-190, 192.

         The Court must point out the numerous deficiencies in Plaintiff's submissions. First, Plaintiff's Response to Defendants' Rule 56 Statement does not comply with the Local Rules of Civil Procedure, which require “correspondingly numbered paragraphs, and, if necessary, additional paragraphs containing a short and concise statement of additional material facts as to which it is contended there exists a genuine issue to be tried.” Loc. R. Civ. P. 56(a)(2). Rather, Plaintiff “contests” the majority of the propounded facts in narrative form, often without citing evidence and/or without responding to or specifically controverting the facts asserted. In accordance with this District's Local Rules, the Court deems admitted any properly supported facts asserted against Plaintiff. Loc. R. Civ. P. 56(a)(2) (“Each numbered paragraph in the moving party's statement of material facts may be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement.”).

         Second, Plaintiff utilizes this submission to assert new claims. E.g., Pl. Opp'n Stmt., ¶ 18. The Court therefore disregards any improperly raised new claims at this stage. See Lyman v. CSX Transp., Inc., 364 F. App'x 699, 701 (2d Cir. 2010) (“An opposition to a summary judgment motion is not the place for a plaintiff to raise new claims.”).

         Finally, the Court does not consider the paragraphs of Plaintiff's Affidavit (ECF Nos. 165, 188 (Amended)) that contradict her sworn deposition testimony, rely on documents not produced in discovery or inadmissible evidence, are unsupported by her evidentiary submissions, or that do not contain adequate citations to the record to support her contentions. See Point 4 Data Corp. v. Tri-State Surgical Supply & Equip., Ltd., No. 11-CV-726, 2013 WL 4409434, at *22 (E.D.N.Y. Aug. 2, 2013), report and recommendation adopted as modified, 2013 WL 5502852 (E.D.N.Y. Oct. 1, 2013), and report and recommendation adopted, 2014 WL 12769275 (E.D.N.Y. Sept. 17, 2014) (“If plaintiffs' counsel expects the Court to ‘scour the record' to document the facts posited in their legal arguments, ‘that is simply not our job, at least in a counseled case.'”) (quoting Sioson v. Knights of Columbus, 303 F.3d 458, 460 (2d Cir. 2002)); Fernandez v. DeLeno, 71 F.Supp.2d 224, 227-28 (S.D.N.Y. 1999) (“counsel simply, in effect, pointed to virtually the entire body of extensive discovery in this case without any evidentiary affidavits or other meaningful identification of triable facts in the record, in effect, inviting this Court to peruse a haystack looking for needles. This invitation is not only inconsistent with the plain requirements of Local Civil Rule 56.1 but, if accepted, would eviscerate summary judgment as an efficient tool for distinguishing claims that should be tried from those that need not be tried.”).

         Therefore, unless otherwise noted, after reviewing the depositions, declarations, exhibits, and other evidence and pleadings, the Court has determined that the following facts are beyond genuine dispute and supported by admissible evidence.


         I. Plaintiff's Employment with RIT

         Plaintiff, an African-American female, began working at RIT in May of 2003. Before joining RIT, Plaintiff earned a Bachelor's Degree in Business Administration from RIT in 1996 and a Master's Degree in Management from Nazareth College in 2003 with a major in Accounting.

         Plaintiff testified that she had been unemployed before 2003, but also that she was sporadically employed in various positions, performing mostly clerical and secretarial work, between February 1983 and April 2002, typically for only a few months at a time. Pl. Dep. 18-25; Gouger Ex. 1. Plaintiff states that her temporary positions were to accommodate her school schedule, and that her time off was spent caring for her children. Pl. Aff. ¶ 3-4, Ex. 2. After graduating high school, Plaintiff worked at Harter Secrest & Emery LLP in the collections department performing billing work. That position ended in 1992. Pl. Dep. 18-25.

         RIT hired Plaintiff as an Operations Coordinator for Venture Creations. Venture Creations was created in 2001 as a new business incubator to create an environment for the development of new, technologically innovative businesses. Venture Creations aids in the development of these new businesses by facilitating their design, development, construction, and operation, with the overall goal of promoting education and research. Various new business start-ups are located at the Venture Creations' facility, located off-campus from RIT, and RIT facilitates their development. In turn, RIT charges fees to the businesses for their use and occupancy of the Venture Creations' facility.

         Defendants state that Plaintiff was responsible for various administrative tasks associated with Venture Creations, such as ensuring that office space was prepared for companies to move-in, ensuring that companies were invoiced for their licensing fees, making sure supplies were stocked, arranging for office keys to be made for new companies, ensuring that the facility was property maintained by coordinating with facilities management, assisting companies with internet technologies issues by coordinating with RIT's internet technologies services department, and arranging for the board meetings of Venture Creations. Def. Appx. Ex. 27 (“Boyd Aff.”) ¶ 5; Pl. Dep. 65-70. Plaintiff, on the other hand, states that although she was hired as an “Incubator Operations Coordinator, ” her position involved far greater responsibilities than administrative tasks, and required a BS in Accounting with three to five years' experience. Pl. Aff. ¶¶ 8-14, Exs. 1, 4, 6.

         During most of Plaintiff's employment, the Venture Creations staff primarily consisted of the Executive Director and Plaintiff. RIT also employed certain other individuals to serve Venture Creations as business consultants. Gouger Decl. ¶¶ 3-4. Plaintiff claims that in 2006, a woman named Anita Rohr was hired to take on the administrative roles, and that in 2007, William Jones was hired to help with operations. Pl. Aff. ¶¶ 4-6, Exs. 2, 16.

         Plaintiff reported to the Director of Venture Creations. Boyd Aff. ¶¶ 4-6; Pl. Dep. 27-28. From 2004 to 2005, she reported to Lynn Kelly, and then to Mick Stadler in 2005 and 2006. Pl. Dep. 27-28. Plaintiff testified that she also reported to Dr. Don Boyd, RIT's Vice President of Research throughout her employment up to his retirement in 2011. Id.; Pl. Aff. ¶ 16.

         From approximately September 2006 until mid-2007, the Venture Creations Director position was vacant, at which point Jerry Mahone was hired as Director of Venture Creations and served in that capacity until June 2010. Mr. Mahone is African-American. Plaintiff reported directly to Mr. Mahone during his tenure as Director of Venture Creations. Plaintiff states that Mahone also worked under Boyd. Pl. Aff. ¶¶ 16, 31-33.

         As previously mentioned, Venture Creations employed Rohr, a Caucasian female, as an Operations Coordinator from approximately 2007 through her termination in February 2011. Plaintiff had repeated conflicts with Rohr. Plaintiff testified that initially their relationship was good, but later deteriorated because Plaintiff received tuition assistance from RIT for her doctoral studies conducted through the University of Phoenix, and Plaintiff was permitted by their then-supervisor, Mahone, to do her homework at work. Plaintiff testified that Rohr resented the fact that RIT and Mahone had assisted her in this manner. Pl. Dep. 127-35.

         Plaintiff's conflicts with Rohr involved, for example, Plaintiff's belief that Rohr infringed on her job responsibilities by performing tasks such as requesting that the air conditioner be fixed or attempting to fix the copier . Pl. Dep. 136-39, 282-84.

         Between April and August of 2009, Plaintiff was out of work on disability in connection with foot surgery. Pl. Dep. 35-36.

         II. Alleged Adverse Actions

         Plaintiff claims that she suffered the following adverse employment actions based on her race: (1) beginning in 2006, a delay on RIT's part in changing her position's title in RIT's Human Resources Computer Software, Oracle, from Operations Coordinator to Operations Manager; (2) RIT's failure to promote Plaintiff; (3) the reclassification of Plaintiff's position from exempt to non-exempt under the Fair Labor Standards Act (“FLSA”); (4) generally, Plaintiff's job responsibilities performing only clerical and administrative work; (5) Plaintiff's attendance at a meeting on November 16, 2009, during which Plaintiff was accused of various deficiencies related to her work performance; (6) a negative performance appraisal (“PA”) in September, 2011; (7) a September 2011 written warning; and (8) her temporary suspension with pay after an incident involving her then-supervisor, Jones; and (9) termination from RIT based on her race and/or gender.

         A. Delay in Updating Plaintiff's Title

         In or around October 2006, shortly after Dr. Boyd began serving as Interim Director of Venture Creations, he informed Plaintiff that she would receive a three percent pay increase, and that her title would change from “Operations Coordinator” to “Operations Manager.” Boyd Aff. ¶ 10, Boyd Ex. 22; Pl. Dep. 109-10. Plaintiff's title change was not implemented within RIT's Human Resources Computer Software, Oracle, until March 2009. Boyd Aff. ¶ 12; Pl. Dep. 110; Gouger Decl. ¶ 7. Nevertheless, Plaintiff began using the “Operations Manager” title immediately. Boyd. Ex. 23; Pl. Dep. 110.

         The delay in updating Plaintiff's title in Oracle was a processing error based on the inadvertent failure to submit the correct Employee Action Form for the changed to be processed. Gouger Decl. ¶ 8. Although Oracle did not reflect the title change, Plaintiff's pay increase was properly processed. Id. ¶ 9. Plaintiff notified RIT President Dr. William Destler of the error in February of 2009. Boyd Aff. ¶ 13; Pl. Aff. ¶ 60, Ex. 40; Reddy Decl., Ex. 8. Plaintiff testified that the title change had no practical impact on her day-to-day responsibilities and wages. Pl. Dep. 110-12.

         B. Failure to Promote

         Plaintiff initially testified that while at RIT, she applied for 50 to 60 positions within RIT, but later changed her testimony, ultimately admitting to having applied for only four positions at RIT. Pl. Dep. 117, 227. Those positions were: (1) counselor position 5527 in the Higher Education Opportunity Program; (2) a managerial position, PC number 8458, in the HUB Crossroads facility; (3) a director of orientation position, PC number 1753; and (4) a business manager position in the Center for Arts and Sciences. Pl. Dep. 227-231, 247. With respect the managerial position, Plaintiff testified that she did not possess the technical skills or meet the qualifications required for that position. Pl. Dep. 238-41. Plaintiff's applications for these positions date back to 2006 and 2007, and she did not apply for any other positions within RIT after August 2007-rather, she “networked.” Pl. Dep. 253. She explained that “discrimination enters your surroundings when you are applying for positions and you are constantly declined, ” but acknowledged that she did not know who ultimately took those positions, and that RIT did not retaliate against her by not hiring her for those four positions. Pl. Dep. 242-49.

         Plaintiff also alleges that she was treated differently than certain of her co-workers, purportedly because of her race, with respect to her inability to secure an unspecified promotion. ECF No. 93 ¶¶ 23-26. Specifically, Plaintiff's Second Amended Complaint cites to Kelly, a former supervisor, as a similarly situated Caucasian co-worker who was allegedly treated more favorably, id. ¶¶ 22-24, but Plaintiff never applied for Kelly's position. Pl. Dep. 170-71. During the relevant time period, Kelly was the Controller and Assistant Treasurer of RIT and RIT employed her for approximately 20 years. Kelly has an Executive Master's Degree and has held various positions within the Finance and Administration Division of RIT, including Manager of Accounting, Director of Accounting, Director of Accounting and Payroll, Assistant Controller, Associate Controller, and Controller and Assistant Treasurer. Boyd Aff. ¶ 24.

         Plaintiff also alleges that, following the departure of Mahone, who is also African-American, she was “never given an opportunity to apply” for the position of Executive Director of Venture Creations because the position was posted on May 24, 2011, when she was on vacation. ECF No. 93 ¶¶ 72-74; Pl. Dep. 41. At the time, Jones, who is Caucasian, had been serving as the Interim Director of Venture Creations and he ultimately took the permanent role in May of 2011. Jones Dep. 22-24.

         Jones also temporarily served as the Interim Director of Venture Creations in 2007, prior to Mahone's hiring. Jones again worked for RIT in 2008 as a part-time consultant working with Venture Creations' businesses. He then served as a business development manager for the New York State Energy Research and Development Authority Clean Energy Incubator when it was established in December 2009. Jones has a Bachelor of Architecture degree from Syracuse University and additional graduate courses in finance and business administration from RIT. His experience included founding and managing FM Technologies (a facilities design and project management company), and working with organizations like Syracuse University, Catholic University, University of Maryland, Kodak, and Xerox. Boyd Aff. ¶ 26. Plaintiff characterizes this work experience as “spotty, ” that his education and skills were “dated, ” and he “did not have higher level education.” Pl. Opp'n Stmt. ¶ 41.

         Defendant states that Plaintiff has been enrolled in an online program at the University of Phoenix since 2007, with the goal of obtaining her doctorate degree, but did not complete it. Pl. Dep. 11-16. Further, Plaintiff provided conflicting testimony regarding her employment activities before RIT employed her in 2003, stating initially that she could not remember any of her employment after graduating from high school; then testifying that she was unemployed before working for RIT; and later testifying that she performed temporary “receptionist” or “clerical” work for Manpower. Pl. Dep. 18-26. Plaintiff also recalled that she worked at Harter Secrest & Emery after high school in the collections department for approximately nine years until 1992. Pl. Dep. 20-23. Plaintiff contends that she “complete[d] her doctorate studies in Educational Leadership, ” but does not specify when. Pl. Aff. ¶¶ 2-24.[2] She further notes that when the Executive Director position opened in 2011, Plaintiff had been working with Venture Creations for over five years with a “proven track record.” Id.

         C. Reclassification of Plaintiff's Position to Non-Exempt

         In or around March of 2007, RIT settled threatened class action litigation related to alleged FLSA violations. This entailed a campus-wide review of RIT's employees' job functions, to ensure that the employees were properly classified as exempt or non-exempt. Effective April 16, 2007, more than 160 RIT employees were reclassified from exempt to non-exempt. Plaintiff's position was one of the reclassified positions. In connection with the reclassification, RIT sent Plaintiff a letter explaining that the reclassification was merely a “legal conclusion” and that it did “not indicate the importance of the position or its status within the University.” Boyd Aff. ¶ 15, Ex. 24. She testified that she was aware that the reclassification occurred campus-wide and that other employees' positions also underwent the reclassification procedure. Without further explanation, Plaintiff states that she was disadvantaged by the reclassification while the Caucasian reclassified employees were not. Pl. Aff. ¶¶ 42-43, 56, Ex. 46; Pl. Dep. 99-100. She testified, however, that her duties remained the same, she made “about the same amount of money, ” and that she was entitled to overtime and received overtime pay when she worked over 40 hours. Id. 94-96.

         According to Plaintiff, she functioned at a “Director level” before the reclassification. Defendant maintains that her work duties were secretarial and clerical in nature. Pl. Dep. 112; Pl. Aff. ¶¶ 3, 12, 32, 33, Exs. 1, 6-7. Plaintiff suggests that the reclassification “limited” her to clerical work and thus decreased her earning potential. Pl. Aff. 42, 43, 56, 170, Exs. 25-26. The reclassification of Plaintiff's position to non-exempt meant that Plaintiff was paid on an hourly basis rather than being paid a set salary. Pl. Dep. 94. Because of this change, Plaintiff was to be paid for any time worked over 40 hours. Boyd Aff. ¶ 16; Pl. Dep. 95-96. Plaintiff contends that the reclassification no longer allowed her a flexible work schedule so that she could not complete her doctoral coursework. Pl. Opp'n Stmt. ¶ 49.

         In mid-2008, Plaintiff and Gouger discussed her FLSA classification. Gouger asked Plaintiff to fill out a detailed job description questionnaire that RIT used to determine which positions should be classified as exempt or non-exempt. Based on Plaintiff's responses to that questionnaire, Gouger confirmed that Plaintiff's position was correctly classified as non-exempt. Gouger Decl. ¶ 6, Ex. 2.

         D. Plaintiff's Job Duties

         Plaintiff testified that her job with Venture Creations always involved primarily secretarial and clerical work, Pl. Dep. 65-69, 112, a statement that she now denies. Pl. Aff. ¶¶ 11, 13, Exs. 6-7. Even after Mahone became her supervisor, she claims that she “ran that facility.” Pl. Dep. 151.

         Plaintiff testified that in 2009 she requested a meeting with Boyd and Mahone to determine the responsibilities of her position. At the meeting, Boyd “asked her what did she want to do and what responsibilities did she have.” Pl. Dep. 105-09. Plaintiff stated that she believed that, throughout her tenure at RIT, “there was a problem with our job responsibilities” and that one of the reasons for this was that the job responsibilities were “not defined.” Pl. Dep. 140.

         Plaintiff declined certain tasks because she believed they were not part of her job description. For example, Plaintiff was asked to maintain the Venture Creations' website. Plaintiff turned down the offer because she believed that it would not provide her the “opportunity to be creative and innovative.” Def. Appx. Ex. 24-25.

         E. November 16, 2009 Meeting

         Plaintiff testified that on November 12, 2009, Mahone informed her that a staff meeting would take place on November 16, 2009. Pl. Dep. 47. Plaintiff, Mahone, Boyd, and Gouger attended the meeting, which was intended to counsel Plaintiff regarding her work performance and her continued conflicts with her co-workers. Boyd Aff. ¶¶ 30-31; Gouger Decl. ¶ 12; Pl. Dep. 47. Plaintiff states that there is no documentation to support that the meeting was a “counseling” in accordance with RIT's Progressive Discipline Policy. Pl. Aff. ¶ 85, Ex. 51.

         During that meeting, Plaintiff alleges that she was accused of having an unprofessional attitude, “hindering customers at Venture Creations, ” starting rumors about Mahone purportedly viewing inappropriate material on his computer, not recording her time properly, and not getting along with other individuals on campus. Pl. Dep. 47.

         Plaintiff also states that she recorded the November 16, 2009 meeting, but the recording was damaged as a result of computer problems when her husband attempted to retrieve the audio file. Pl. Dep. 79-84, 254-59. Plaintiff testified that no further action was taken in connection with any of the purported allegations made at the November 16, 2009 meeting, and that nothing that was said at that meeting led her to believe that the meeting was related to her race. Id. at 48, 62-63. Plaintiff later filed discrimination and retaliation charges with the Equal Employment Opportunity Commission (“EEOC”) in connection with the meeting.

         Plaintiff testified that she experienced problems with approximately nine or ten different RIT employees. Pl. Dep. 56-58. According to Plaintiff, the problems were always the fault of her co-workers. Id. She conceded that she had a history of not working well with other women even before RIT employed her. Pl. Dep. 193-94.

         At RIT, Plaintiff was involved in several incidents involving Rohr, her female co-worker. Boyd Aff. ¶¶ 18-19; Pl. Dep. 127-128, 133-135. Plaintiff testified that she yelled at Rohr in the workplace approximately four separate times. Pl. Dep. 149-50. One of the incidents led Plaintiff to tell Rohr: “be a professional and stop the child's play. You're too old to be acting like a two year old.” Boyd Aff. ¶ 18, Ex. 25.

         F. Plaintiff's 2011 Performance Appraisal

         In mid-2010, Jones became the Interim Director of Venture Creations, upon Mahone's departure. Boyd Aff. ¶ 26. Plaintiff testified that, until she received her PA in September of 2011, she and Jones had “a great employee-employer relationship.” Pl. Dep. 262-64. Plaintiff states that the relationship ...

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