The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 were read on this motion to/for DISMISSAL. DECISION ORDER ON MOTION Defendant, The City of New York (“City”), moves the court pursuant to CPLR §§3211(a)(1), 3211(a)(2), 3211(a)(7) and New York City Administrative Code §8-502(a) for an order seeking dismissal of plaintiff’s complaint in its entirety on the grounds that the complaint is time-barred, in whole or in part, by the applicable statute of limitations; that plaintiff’s claims are refuted by documentary evidence; and that the complaint fails to state a cause of action.1 After careful review of the papers submitted, the motion is granted. Plaintiff is an African American female of Haitian descent employed by the Office of the Comptroller of the City of New York. Plaintiff was hired as a “Claims Specialist Level 2″ on or about March 3, 1997 and was subsequently promoted to the title of “Claims Manager/Administrative Claims Examiner” (Provisional) in May of 1999. Plaintiff retained the latter title for seventeen (17) years until her eventual demotion in January of 2016. Plaintiff asserts that due to her race, national origin, and gender she was subjected to disparate treatment and a hostile work environment in the form of sexual harassment in violation of the New York City Human Rights Law (“NYCHRL”). Plaintiff further asserts retaliation in the form of an internal transfer which occurred four months after plaintiff filed charges of employment discrimination with the New York State Division of Human Rights (“NYSDHR”) and the United States Equal Employment Opportunity Commission2 (“EEOC”) along with various instances of retaliatory conduct culminating in plaintiff’s demotion and subsequent disqualification from Civil Service Exam No. 8242 for the title of Administrative Claims Examiner. Specifically, plaintiff alleges a course of conduct between late 2013 and August of 2016 by the named defendants and the department as a whole, including but not limited to, staff avoiding interactions with her, negative performance reviews, the assignment of undesirable duties and office space, failure to provide required formal annual job evaluations, exclusion from team meetings, and disregard of plaintiff’s verbal and written complaints of harassment and differential treatment. Plaintiff avers the following facts: On or about August 23, 2013, plaintiff filed charges with both the NYSDHR and the EEOC naming defendant Michael Aaronson (plaintiff’s supervisor at the Office of the Comptroller), along with other individuals who are not parties to the instant action. In December of 2013, Aaronson transferred plaintiff from the No-Fault Division to the Bureau of Law and Adjustment against plaintiff’s wishes. Plaintiff maintains that the transfer occurred because she called attention to the Department’s mismanagement of settlement claims and discriminatory employment practices. Thereafter, plaintiff complained to, then, Comptroller John Liu that her transfer was in retaliation for filing discrimination charges against Aaronson. Plaintiff had also complained to Aaronson concerning the conduct of the staff, i.e., exclusion from team meetings, avoidance of plaintiff, and claims that Aaronson did not take any action to address or remedy the situation. In fact, plaintiff contends that Aaronson either encouraged the conduct or engaged in same. Following plaintiff’s transfer to the Bureau of Law and Adjustment, defendant Vincent Rivera (who reported to Aaronson) became plaintiff’s direct supervisor from December of 2013 until Rivera’s retirement in or about July of 2016. Plaintiff asserts that Rivera began complaining about his marriage. He claimed that he was unhappy as his wife was chronically ill and could not do the things that he wanted her to do. In response, plaintiff expressed empathy and encouraged Rivera as she considered him a friend. Thereafter, in or about late 2014, Rivera informed plaintiff that he planned on retiring and thus, had no use for various personal items that he kept at the office. Such that, on numerous occasions, Rivera offered these items to plaintiff, including a DVD player and a coffee maker. In 2015, after plaintiff accepted the coffee maker, Rivera indicated that he had a sexual interest in plaintiff. Plaintiff told Rivera “in very clear terms” that she would not engage in sexual relations with him because Rivera was her supervisor and she knew his wife.3 A few days later, Rivera told plaintiff to forget that they ever had a conversation regarding his sexual interest. Thereafter, plaintiff contends that Rivera became critical of plaintiff’s work product. Additionally, plaintiff also asserts retaliation in that Aaronson assigned another employee (Karen Cohen) to the cubicle next to plaintiff’s despite plaintiff having filed a discrimination complaint against said employee. Plaintiff contends that Cohen was not part of plaintiff’s unit and that there were other available cubicles. Plaintiff was uncomfortable with the arrangement as Cohen would allegedly repeatedly stand over the cubicle partition and watch plaintiff. Plaintiff wrote an e-mail to Aaronson complaining about the situation but, avers that Aaronson did not take any action to remedy same. Plaintiff remained assigned to the cubicle next to Cohen until Cohen left the agency in July of 2014. Plaintiff further alleges that she did not receive performance evaluations for the years 2011, 2012, 2013, 2014, as required.4 In or about 2015, plaintiff inquired of her supervisor Debra Sencer5 as to why she had not received any performance evaluations and Sencer told her that she was waiting on Aaronson to complete the evaluations for the Division Chiefs. Plaintiff contends that Sencer’s response was a pretext for retaliation and that a lack of job performance evaluations prevented her from being seriously considered for promotions, certain job assignments, and/or bonuses. Plaintiff avers that she did not receive any bonus or monetary merit increases during the period she did not receive a job performance evaluation. Thus, in or about August of 2014, plaintiff complained to the Deputy Comptroller for Administration Amedeo D’Angelo concerning her supervisor’s failure to perform annual performance evaluations for 2011, 2012 and 2013. Plaintiff included Aaronson in the correspondence but contends neither Aaronson nor Deputy Comptroller D’Angelo took any remedial action. Plaintiff also contends that she faced retaliation for her reporting the mishandling and mismanagement of claims by the Department of Education Team where plaintiff worked under Rivera. Specifically, plaintiff argued that there were quotas for the settlement of claims thus, claims were not properly investigated; and further, that Aaronson and others allowed payments on claims that should not have been made in detriment to the public. In or around September of 2015 plaintiff complained to, then, Assistant Comptroller Seunghwan Kim and Aaronson about this. In addition, on or about September 21, 2015, plaintiff was instructed by Claims Specialist Mike Reder to regularly check the mailbox and pick up her own mail. Specialist Reder also instructed plaintiff not to write notes regarding third-party claims. In response, plaintiff made a complaint concerning Reder’s conduct to the DC 37 Local Union Representative as Reder was a member of DC 37. On or about September 22, 2015, plaintiff also sent an e-mail to Rivera and others concerning Specialist Reder’s conduct. Plaintiff asserts that as a result, from September 24, 2015 and onward, plaintiff received less claims to process and her log-in credentials were changed, which hampered her claims processing ability. She avers this was done without any prior information or discussion with her. Plaintiff asserts that the administration failed to address these issues despite her complaints. On that same day, a meeting was held between plaintiff and Rivera in which Rivera allegedly repeated Reder’s instruction that plaintiff was not to write notes or comments regarding the identification of third-party claims prior to the claims being released and assigned to a specialist. In response, plaintiff told Rivera that this directive was improper and not in accordance with plaintiff’s job specifications. Plaintiff asserts that Rivera became upset and very condescending towards her but refused to put his directives in writing. The next day plaintiff sent an e-mail to Assistant Comptroller Kim and Aaronson detailing her meeting with Rivera. Thereafter, on October 15, 2015, General Counsel met with plaintiff to discuss her alleged insubordination for not following Rivera’s instructions regarding notes or comments pertaining to third-party claims. However, plaintiff avers that she was never formally charged or found insubordinate. Thereafter, on or about January 11, 2016, plaintiff had a meeting with Assistant Comptroller Kim and Deputy Comptroller D’Angelo wherein plaintiff was formally demoted from her Claims Manager/Administrative Claims Examiner provisional position to Claims Specialist Level 2, pursuant to the restructuring plan of the Bureau of Law and Adjustment. Additionally, plaintiff’s salary was reduced by $5,000.00 and plaintiff was transferred to the Affirmative Unit. Plaintiff contends that her demotion was motivated by discrimination as plaintiff was the only non-white woman in her unit and the only person whose salary was reduced during the re-structure. In support of this contention, plaintiff avers that Assistant Comptroller Kim made discriminatory comments about Luc Pierre, a black male employee, whom Kim purportedly did not like and indicated he wanted to get rid of; and that Kim mistreated women under his leadership.6 On or about March 14, 2016, Rivera rated plaintiff as below average as to her job performance which plaintiff contends was done to help “cover up” plaintiff’s demotion and reduction in salary. Later, at a meeting on April 25, 2016, which was attended by Juliet White (a DC 37 Union Representative), Assistant Comptroller Kim purportedly stated that he made a mistake concerning plaintiff’s demotion and salary reduction. No action was taken in accordance with these alleged statements. Plaintiff maintains that Juliet White, who received a salary increase after plaintiff’s federal case was filed, was dissuaded from testifying truthfully about the April 25, 2016 meeting and that plaintiff’s complaints about the mismanagement of claims were substantiated.7 As a result of the aforementioned conduct, on or about December 29, 2016 plaintiff filed an unlawful discrimination complaint with EEOC8 on the basis of race, sex, and retaliation.9 Plaintiff also filed a whistle blower complaint with the NYC Department of Investigation wherein plaintiff asserted that claims were not being properly investigated and were mishandled by Rivera. Lastly, in or about November of 2017, the City published a Notice of Examination for an Administrative Claim Examiner position (Exam No. 8242) which required that candidates hold the Administrative Claim Examiner title (Provisional) for consideration. At the time of the exam, plaintiff was Claims Specialist Level 2 and thus, the City found plaintiff ineligible via a November 27, 2017 Disqualification Notice. Plaintiff appealed the disqualification which was denied by the City on January 10, 2018. The standards for recovery under the New York City Human Rights Law (NYCHRL) is analyzed pursuant to the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 US 792 [1973]. (See also Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of the AFL-CIO, 6 NY3d 265, 270 [2006]; Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). Under McDonnell Douglas, the plaintiff has the initial burden to establish a prima facie case of discrimination. To meet that burden, plaintiff must show that he or she is a member of a protected class, was qualified for the position held, was terminated from employment or suffered another adverse employment action, and the termination or other adverse action occurred under circumstances giving rise to an inference of discrimination. (See Stephenson, 6 NY3d at 270, citing Ferrante v. American Lung Ass’n, 90 NY2d 623, 629 [1997]; Forrest, 3 NY3d at 305; Baldwin v. Cablevision Sys. Corp., 65 AD3d 961, 965 [1st Dept 2009]). If plaintiff makes this prima facie showing, the burden then shifts to the employer to rebut the presumption of discrimination by demonstrating that there was a legitimate and non-discriminatory reason for its employment decision. If the employer articulates a legitimate, non-discriminatory basis for its decision, the burden shifts back to the plaintiff “to prove that the legitimate reasons proffered by defendant were merely a pretext for discrimination.” (Ferrante, supra; see also Texas Dept. of Community Affairs v. Burdine, 450 US 248, 253 [1981]). In addition to analyzing cases under the McDonell Douglas framework, courts have also held that NYCHRL claims must be analyzed under the somewhat different ‘mixed-motive’ framework recognized in certain federal cases. (See Melman, 98 AD3d at 113; Godbolt v. Verizon N.Y. Inc., 115 AD3d 493, 495 [1st Dept 2014]; Carryl v. MacKay Shields, LLC, 93 AD3d 589, 589-590 [1st Dept 2012]). Therefore, when a defendant has produced evidence of a legitimate reason for its action, “[t]he plaintiff must either counter the defendant’s evidence by producing pretext evidence (or otherwise), or show that, regardless of any legitimate motivations the defendant may have had, the defendant was motivated at least in part by discrimination.” (Bennett, 92 AD3d at 39; Melman, 98 AD3d at 127). As it pertains to plaintiff’s claims of discrimination, the court finds that plaintiff has not proffered evidence suggesting that on the basis of her race, gender, or national origin she was subjected to disparate treatment. To establish a prima facie case for discrimination, a plaintiff must show that he or she is a member of a protected class; was qualified for the position held; suffered an adverse employment action; and the adverse action occurred under circumstances giving rise to an inference of discrimination. Here, while plaintiff argues generally about a culture of discriminatory practices, she fails to assert specific instances in which she was specifically discriminated against on the basis of her race, national origin, or gender. For example, plaintiff asserts that because she did not receive performance evaluations she was never considered for promotions, job assignments, or bonuses but fails to assert a specific instance in which she requested same and was denied or that she was qualified for receipt or consideration of a bonus or promotion and was denied. Further, the specific instances that are provided by plaintiff either pertain to colleagues and do not involve plaintiff directly, or, as the City correctly argues, are time-barred. For instance, plaintiff asserts that in January of 2014, Aaronson assigned Karen Cohen to a cubicle next to plaintiff’s despite plaintiff’s discrimination complaint against her. Plaintiff also asserts that Rivera made sexual overtures to her in 2015,10 that plaintiff did not receive performance evaluations for 2011, 2012, 2013, and 2014, and that on the basis of her race plaintiff was demoted on January 11, 2016. As plaintiff commenced this action on January 29, 2019, the court cannot consider these incidents because they are time-barred as a civil action under NYCHRL must be commenced within three years of the alleged discriminatory conduct.11 See Jae Hee Chung v. Mary Manning Walsh Nursing Home Co., Inc., 147 AD3d 452 (1st Dept 2017) and Jeudy v. City of New York, 142 AD3d 821 (1st Dept 2016). Similarly, with regard to plaintiff’s claims of retaliation, the court finds that many of these are likewise time-barred. For example, plaintiff asserts that as a result of an internal complaint, in September of 2015 she was instructed to pick up her own mail; improperly instructed not to make notes on unassigned third-party claims; her log-in was changed; and she received less settlement claims. However, these claims are outside the time period and thus cannot be considered. As to plaintiff’s specific retaliation claims that are not time-barred, the court finds that plaintiff has not met her burden under the McDonnell Douglas framework. In essence, plaintiff asserts that all actions taken by administration after plaintiff filed dual charges with EEOC and NYSDHR constituted retaliation, but the record does not support same. For instance, plaintiff contends that she was transferred in December of 2013 in retaliation for the dual charges she filed with NYSDHR and EEOC, but the City avers that the transfer was at the behest of plaintiff who submitted a request for same. Plaintiff also maintains that the March 14, 2016 “below average” performance evaluation was retaliatory but, as the City correctly argues, this claim is far too attenuated as plaintiff’s allegedly protected activity occurred almost three years prior. Furthermore, plaintiff fails to allege an accompanying adverse action or offer facts to suggest that the performance evaluation was unfounded. Additionally, plaintiff contends that Juliet White was persuaded by a salary increase to misrepresent her testimony of an April 25, 2016 meeting, but said testimony was not included in this record for the court’s consideration. Finally, plaintiff asserts continued retaliation in that plaintiff sought to sit for the Administrative Claim Examiner Exam but was denied because she did not meet the exam eligibility requirements. It is undisputed that an examinee must hold a provisional Administrative Claim Examiner title to qualify for the exam and that plaintiff held the title of Claim Specialist 2 at the time of applying. While the plaintiff seems to suggest that her 2016 demotion and her being found ineligible for the 2017 examination are connected, it is wholly improbable that plaintiff would be targeted for an alleged improper demotion to timely coincide with eligibility assessments for a citywide examination. Moreover, even if plaintiff were allowed to retain her provisional title and qualify for the exam there is no guarantee that she would have passed or subsequently have been selected for the position from the numerous applicants on the resulting civil service list. Thus, based on the foregoing, the City has demonstrated entitlement to the relief sought and it is hereby ORDERED that the City’s motion to dismiss plaintiff’s complaint is granted; and it is further ORDERED that the complaint is dismissed in its entirety and the Clerk is directed to enter judgment accordingly; and it is further ORDERED that the movant is to serve a copy of this order, with notice of entry, upon plaintiff and the other defendants within thirty days of receipt of this order; and it is further ORDERED that any requested relief not expressly addressed herein has been considered and is hereby denied. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: March 3, 2020
