Opinion
05 Civ. 3245 (TPG).
September 18, 2007
OPINION
Plaintiff Yvonne Shan, an African-American, brings this actionpro se against her former employer, the New York City Department of Health and Mental Hygiene, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging racial discrimination. She also makes a state-law claim for defamation.
The Department has moved for summary judgment on all claims pursuant to Fed.R.Civ.P. 56(b). The motion is granted.
FACTUAL SUBMISSIONS ON THE MOTION
Shan filed a form complaint provided by the Court's pro se office. It contains a section wherein a plaintiff is able to make a check mark indicating the conduct that she alleges gives rise to her claim, and a short section for the plaintiff to describe the facts of her case. Shan's complaint has check marks indicating that she alleges wrongful termination, failure to promote, unequal terms and conditions of employment, and retaliation. She has also written in "assassination of character", "libel and slander", "race harassment", and "pain and suffering". Her brief summary of the facts in her complaint is little more than a recitation of her claims, along with an accusation that her employers "conspired with Human Resources officials to engage in illegal activities which includes interference, fraud, corruption and violation of my Constitutional Rights."
To the extent that the record contains any factual information, it largely comes from materials provided by the Department. It should be noted that the Department has furnished the court with a copy of the charge which Shan filed with the New York State Division of Human Rights.
Shan has filed two affirmations in opposition to the Department's motion. These add little to the factual record, as will be described.
The following facts are undisputed. Shan was employed by the Department of Health and Mental Hygiene from 1995-2003. She was provisionally hired as a Principal Administrative Associate. She first worked as a secretary to both Dr. Stephen Friedman, who was Assistant Commissioner of the Bureau of Immunization, and Arsenia Delgado, the Bureau's Program Management Officer. Shan applied for a new position within the Department in November of 2001. On April 22, 2002, apparently in response to her application, she was assigned to work in the office of the Chief of Staff to the Department Commissioner and transferred out of the Bureau of Immunization. Soon after, on May 13, 2002, Shan was transferred from the Chief of Staff's office to a third office, the Bureau of Vital Records. On July 29, 2002, Shan was transferred back to the Bureau of Immunization and assigned to the Perinatal Hepatitis B Prevention Unit. On May 14, 2003, Shan received a letter notifying her that she would be terminated effective May 16. Another employee, also a black woman, was terminated on or about that same day, but was subsequently re-hired.
On June 20, 2003 Shan filed a charge with the New York State Division of Human Rights. The SDHR issued its decision on October 26, 2004, and stated that its "investigation failed to establish a causal nexus between the treatment of which complainant complains and the basis of the allegations cited in her complaint."
In support of its motion, the Department has submitted evidence of numerous warnings about Shan's work performance and behavior that were issued to her during the course of her employment. On July 7, 1997, Delgado gave such a warning to Shan to the effect that on July 1, 1997 she had engaged in inappropriate and disrespectful conduct towards a co-worker. On October 25, 2000, Shan left work without authorization, and Friedman sent her a memorandum two days later informing her that this was unacceptable. In connection with that incident, Shan received an additional written warning regarding her verbal abuse of a co-worker who had reported her absence to superiors. Additionally, on January 22, 2001, Friedman warned Shan in writing to stop attempting to organize a pool to bet on the Super Bowl, in violation of the Department's prohibition on employee gambling at work.
Approximately one month after Shan was transferred from the Bureau of Immunization to the Bureau of Vital Records, Shan received a written warning from one of her supervisors that her behavior was unsatisfactory. Several incidences of Shan's behavior were listed in the warning, including lateness, challenging a supervisor in the presence of a customer (Department staff refer to individuals who receive their services as "customers"), failure to follow instructions, and failure to notify the Department of an unplanned absence. Additionally, after Shan was transferred to the Perinatal Hepatitis B Prevention Unit, she received a written warning regarding her refusal to obey an order from her supervisor.
The Department has also submitted in support of its motion internal Department correspondence regarding Shan's behavior and regarding personnel actions taken in response to that behavior. On June 19, 2002, Shan's supervisor sent an email requesting that Shan be removed from the Bureau of Vital Records due to her unsatisfactory performance. On June 28, 2002, one of Shan's co-workers wrote a letter to Shan's supervisor complaining that Shan was confrontational and abusive toward her in the presence of a customer.
The Department has also provided the declaration of Stephen Friedman, Assistant Commissioner of the Bureau of Immunization. According to Friedman, when Shan was eventually transferred back to the Bureau of Immunization, on July 29, 2002, her previous position had already been filled, and she was assigned to work in the Perinatal Hepatitis Prevention Unit.
Friedman also states that in May 2003, the Office of the Mayor instructed the Department of Health to cut its budget. Friedman was instructed to reduce the Bureau of Immunization's budget by $68,000 in personnel costs. To achieve this reduction, two provisional positions, including the one occupied by Shan, were eliminated. The other eliminated position was also occupied by a black woman, who was subsequently rehired.
The Department has also submitted to the court the charge that Shan filed with the SDHR. In that charge, Shan stated "I believe that my race, color (Black) was a factor in my termination. The layoff had an adverse impact on Black employees. Upon information, Caucasion employees were more likely to be retained by [the Department]." When she was asked at her deposition what evidence she had to support her claim that her race was the reason she was treated unfairly, she said "My skin is black. That is the evidence I have." When she was asked again, she simply said "Because I am black and my employer is white." The Department has also provided an email that Shan wrote to Fortuno, complaining of unfair treatment. That email contains no reference to Shan's race.
Shan has submitted two separate affirmations in opposition to the Department's motion. The first recounts the history of the proceedings before the SDHR, and complains that the Department missed several deadlines in that proceeding and did not provide certain documents that the SDHR requested. Shan's affirmation also describes an earlier case, involving different plaintiffs, in which the Department was sued for racial discrimination. Finally, Shan's first affirmation describes the documents that the Department has submitted as "fabricated" and as part of the alleged scheme to treat Shan unfairly.
Shan's second affirmation is a somewhat rambling and disjointed account of the unfair treatment she alleges. It describes how she was transferred to various offices within the Department, and characterizes each transfer as part of an ongoing scheme to target her and "snuff [her] life as well as her career." Neither of her submissions provide any evidence that race played any part in the Department's decisions to transfer her or eventually terminate her.
Shan's allegations of defamation are cursory in her complaint, but are somewhat expanded in her deposition. She testified that she was defamed when Friedman and Delgado accused her of the "embezzlement" of $350 dollars in Department funds at a meeting of Department staff. According to Shan, the matter was settled after she "made one simple phone call." Shan further alleges that she was defamed in an anonymous note that was placed on the desks of employees in her department. At her deposition, she said the note stated that involved in an unspecified "activity", but Shan was unable to recall any specifics about the note at her deposition, or even its general substance, and did not produce it in connection with her summary judgment motion.
DISCUSSION
Summary judgment is appropriate only when the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once a properly supported motion for summary judgment has been made, the burden shifts to the non-moving party to put forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). As Rule 56(e) states, mere allegations or denials of the adverse party's pleading are insufficient to oppose such a motion successfully. The nonmoving party must do more than show that there is "some metaphysical doubt" as to the material facts.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party may not rest on its pleadings and rely on mere allegations, denials, conclusory statements, or conjecture to create a genuine issue for trial.See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-67 (1986);Trinidad v. N.Y. City Dep't of Corr., 423 F.Supp.2d 151, 161 (S.D.N.Y. 2006).
The Discrimination Claims
Statute of Limitations
All of Shan's claims of racial discrimination are time-barred and may be dismissed for that reason alone. 42 U.S.C. § 2000e-5(e)(1) "specifies with precision" the prerequisites that a plaintiff must satisfy before filing suit. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). The plaintiff must file a charge with the EEOC within 300 days after the claim accrues, or within 30 days of receiving notice from a state agency that it has terminated proceedings, whichever is earlier. 42 U.S.C. § 2000e-5(e)(1). Failure to file the charge of discrimination within that time period is not, however, an absolute bar, because the court may equitably toll the statute.AMTRAK v. Morgan, 536 U.S. 101, 109 (2002).
According to Shan's complaint, she filed a charge with the EEOC in November 2004, shortly after the State Division of Human Rights issued a determination and order terminating proceedings in her case on October 26, 2004. Assuming Shan filed her EEOC charge on November 1, 2004, nevertheless that date is more than 300 days after her termination on May 16, 2003, the last possible date that an adverse employment action could have taken place.
Finally, although the court has the power to toll the statute equitably, the Supreme Court has stated that "strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." AMTRAK, 536 U.S. at 108. The Department is therefore entitled to summary judgment dismissing all of Shan's Title VII claims.
Discrimination Claims — The Merits
Even assuming Shan's charge with the EEOC had been timely filed, the Department's motion for summary judgment on Shan's discrimination claims should be granted on the merits.
Wrongful Termination
In evaluating claims of wrongful termination based on race discrimination, courts apply the burden-shifting analysis prescribed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). First, Shan must make out a prima facie case of discrimination by showing that 1) she is a member of a protected class; 2) she was qualified for her position; 3) she suffered an adverse employment action; and 4) the circumstances of the adverse action give rise to an inference of discrimination. A plaintiff's burden to make out a prima facie case is minimal. Fisher v. Vassar College, 114 F.3d 1332, 1340 n. 7 (2d Cir. 1997).
The first three prongs of this inquiry are not in dispute. The parties do dispute whether there is a basis for an inference of discrimination. Shan refers only to the fact that she is black and Friedman white in her complaint. She also stated, in the charge she filed with the state Division of Human Rights, that "[t]he layoff had an adverse impact on Black employees. Upon information, Caucasion employees were more likely to be retained by [the Department]." She provides no specific evidence to support this allegation. The only other evidence in the record that bears on the role race played in the layoff decision is that the other provisional employee who was terminated was also black, and was subsequently re-hired by the Department.
While these allegations of discrimination are thin, the Court will give Shan the benefit of the doubt and assume that she has met her burden of pleading a prima facie case. The burden then shifts to defendant to provide a legitimate, nondiscriminatory reason for the termination. Burdine, 450 U.S. at 254.
The Department's submissions provide evidence of two legitimate, nondiscriminatory reasons for terminating Shan. First, due to budget cuts, two provisional positions were eliminated. Budget-driven reductions in force are, of course, legitimate, nondiscriminatory business rationales for discharge.See Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1226 (2d Cir. 1994). Second, Shan had a long history of performance and disciplinary problems, which resulted in repeated warnings. Unsatisfactory performance and conflicts with co-workers are also legitimate, nondiscriminatory business rationales for discharge. See Barlow v. Connecticut, 319 F.Supp.2d 250, 265 (D. Conn. 2004), aff'd 148 Fed. Appx. 31, 2005 WL 2136961, *1 (2d Cir. Sept. 6, 2005).
As the Department has provided valid reasons for Shan's discharge, the burden now shifts to Shan who must show defendant's articulated reason was a mere pretext for actual discrimination. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). In order to satisfy her burden, Shan must produce sufficient evidence to support a rational finding that the Department's articulated reasons were false and, more likely than not, discrimination was the real reason for the termination. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996).
Shan has failed in this regard. Aside from the unsubstantiated and blanket characterization of the Department's evidence as "fraudulent", she has offered nothing to rebut the Department's evidence of her performance record or the budget reduction that necessitated her termination. Accordingly, the Department is entitled to summary judgment dismissing this claim. See Gorham v. Transit Workers Union Local 100, 1999 WL 163567, *4 (S.D.N.Y. Mar. 24, 1999).
Failure to Promote
In evaluating claims of race discrimination based on a failure to promote, courts apply a slightly modified version of the burden-shifting analysis from McDonnell Douglas and Burdine. A plaintiff must allege that "she or he applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions she or he generally requested promotion." Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998). Here, it is necessary to look to Shan's charge filed with the state Division of Human Rights in order to determine what her failure to promote claim consists of. In that charge, Shan states that she underwent training to become a Supervisor which was to be effective July 29, 2002, but she never became one. This is simply too vague to meet the legal requirements for a valid claim of discriminatory failure to promote.
In addition, the Department has made a convincing case of legitimate, nondiscriminatory rationales for its actions. It is true that the Department's papers focus on Shan's termination rather than its failure to promote her. Nonetheless, the Department characterizes those rationales as reasons for "its actions" more generally, and thus appears to be offering them as reasons for all of the alleged discriminatory actions. Therefore the legitimate, nondiscriminatory rationale for failing to promote Shan is her poor performance record. And, as described above in connection with Shan's wrongful termination claim, Shan has offered no evidence to suggest that the Department's proffered reasons are pretextual. The Department's motion for summary judgment is granted with respect to the failure to promote claim.
Retaliation
Shan also alleges that the Department retaliated against her. To state a claim for retaliation, the plaintiff must allege that 1) she participated in a protected activity, 2) that the defendant knew of the protected activity, 3) that there was an adverse employment action, and 4) that there was a causal connection between the protected activity and the adverse employment action. See McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001). Protected activity is action undertaken to oppose an employment practice prohibited by Title VII, or participation in a proceeding or investigation that is undertaken pursuant to Title VII. 42 U.S.C. § 2000e-3(a). Shan has not alleged, much less shown, that she was engaged in any protected activity during her employment. The only protected activity that appears in the record is Shan's filing of her charge with the State Department of Human Rights on June 20, 2003, after she was terminated. Shan admits that she did not complain to the Department of any discrimination. Indeed, she wrote a lengthy e-mail to Associate Commissioner Carlos Fortuno complaining about the unfair treatment she felt she was subjected to, and never once suggested that her treatment was caused by her race. Therefore, her retaliation claim is not based on any protected activity, and her claim must be dismissed. See Williams v. City of New York, No. 04 Civ. 1993, 2005 WL 829103, *12 (S.D.N.Y. April 12, 2005) (dismissing retaliation claim when protected activity occurred after termination).
Hostile Work Environment
As well as can be determined from the complaint and Shan's summary judgment papers, Shan alleges that the Department subjected her to a hostile work environment in that she never received performance evaluations, never received mandatory training, was not given a sound card and speakers for her computer, never received a code to operate the copying machine in her office, and never received meaningful assignments after her July 29, 2002 transfer. To prevail on a claim for hostile work environment based on race Shan must show that her treatment was motivated specifically because of her race, and not for other reasons. See Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). Shan has not produced any evidence linking her treatment to her race. Therefore the Department is entitled to summary judgment dismissing Shan's hostile work environment claim.
Defamation
Shan also asserts state-law claims for defamation. She alleges that she was defamed when Friedman and Delgado accused her of the "embezzlement" of $350 dollars in Department funds at a meeting. According to Shan's deposition testimony, the matter was settled after she "made one simple phone call." Shan also alleges that she was defamed in an anonymous note that was placed on the desks of employees in her department. This note allegedly said that she was involved in an unspecified "activity", but Shan could not recall any specifics about the note at her deposition, and did not produce it in connection with her summary judgment motion.
There are several reasons to grant the Department's motion with respect to Shan's defamation claims. As an initial matter, Shan failed to file a notice of claim within the time period required for tort claims against the City of New York. New York's General Municipal Law, sections 50-e and 50-i, require a litigant to file a notice of claim within 90 days of the claim's accrual. The very latest that Shan's claims could have accrued is May 16, 2003, when she was terminated. Shan has not alleged that she ever filed a notice of claim. Therefore her defamation claims are barred and the Department is entitled to summary judgment dismissing them.
Even if Shan had filed a timely notice of claim, the Department would be entitled to summary judgment on the merits of her defamation claims. The elements of defamation are 1) a false statement, 2) published without privilege or authorization to a third party, 3) fault rising at least to the level of negligence, 4) and the statement must either cause special harm or constitute defamation per se. See Dillon v. City of New York, 261 A.D.2d 34, 38; 704 N.Y.S.2d 1 (1st Dept. 1999).
The Department argues, inter alia, that the statements are non-actionable because they are protected by a qualified privilege that extends to good-faith communications by a party having an interest in a subject, if made to a party having a corresponding interest. See Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 258; 633 N.Y.S.2d 106 (1st Dept. 1995). Statements made by a supervisor in the course of reviewing or evaluating the performance of an employee fall within the privilege. See Kasachkoff v. City of New York, 107 A.D.2d 130, 134-35; 485 N.Y.S.2d 992 (1st Dept. 1985). Because the statements were made by Shan's supervisors at a staff meeting, and heard only by other Department employees, the statements clearly fall within the privilege. See id. at 135.
An assertion of qualified privilege may be defeated by a showing of "actual malice", "actual ill will", or "culpable recklessness or negligence". See Stillman v. Ford, 22 N.Y.2d 48, 53; 290 N.Y.S.2d 893 (N.Y. 1968). Shan has provided no evidence that the embezzlement accusation was made with malice. To defeat a motion for summary judgment based on a qualified privilege, "there is a positive requirement that [plaintiff's submission] show evidentiary facts. Shapiro v. Health Ins. Plan of Greater New York, 7 N.Y.2d 56, 63; 194 N.Y.S.2d 509 (N.Y. 1959). Shan has simply not set forth any evidentiary facts to suggest that the conversation about the $350 was anything other than a good-faith investigation of a matter of obvious importance to the Department.
Shan also alleges that she was defamed by a note that was distributed to various individuals around the department. However, she cannot recall the contents of the note. CPLR § 3016(a) requires, for defamation actions, that the "particular words complained of shall be set forth in the complaint." See also Dillon, 261 A.D.2d at 39-41. Not only has Shan failed to set forth the particular words that were written on the alleged note, she cannot even remember the substance of the comments. Therefore the Department's summary judgment motion with respect to the alleged defamatory note should be granted.
Conclusion
For the reasons stated, the court grants the Department's motion for summary judgment on all claims.
SO ORDERED