Husser v.

MARGO K. BRODIE, District Judge

Daniel E. Clifton, Elaine Lynette Smith, Rachel S. Paster, Lewis, Clifton & Nikolaidis, P.C., New York, NY, for Plaintiff.

Damion Kenneth Lee Stodola, City of New York, Law Department, New York, NY, for Defendants.

MARGO K. BRODIE, District Judge:

On December 12, 2012, Plaintiff Heidi Husser commenced this action against the New York City Department of Education. (Compl., Docket Entry No. 1.) By Second Amended Complaint filed September 6, 2013, Plaintiff named John Shea and John O'Connell as additional defendants. (Second Am. Compl., Docket Entry No. 16.) Plaintiff brings claims of discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the New York State Human Rights Law, N.Y. Exec. Law § 296 (“NYSHRL”) and the New York City Human Rights Law, N.Y.C. Admin. Code § 8–107 (“NYCHRL”), as well as wage discrimination in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (“EPA”), and retaliation in violation of 29 U.S.C. § 215(a)(3). Plaintiff's claims arise

out of her employment at the New York City Department of Education's Division of School Facilities.

Defendants moved for summary judgment, and, on April 3, 2014, the Court referred Defendants' motion to Magistrate Judge James Orenstein for a report and recommendation. By Report and Recommendations dated September 15, 2015 (“R & R”), Judge Orenstein recommended that the Court (1) grant Defendants' motion for summary judgment as to Plaintiff's hostile work environment claims, and (2) deny Defendants' motion in all other respects. (R & R 30, Docket Entry No. 56.) No party has objected to the R & R, and the time for doing so has passed.

A district court reviewing a magistrate judge's recommended ruling “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). “Failure to object to a magistrate judge's report and recommendation within the prescribed time limit ‘may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object.’ ” Sepe v. N.Y. State Ins. Fund, 466 Fed.Appx. 49, 50 (2d Cir.2012) (quoting United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997)); see also Almonte v. Suffolk Cty., 531 Fed.Appx. 107, 109 (2d Cir.2013) (“As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point.” (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.2003))); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.2010) (“[A] party waives appellate review of a decision in a magistrate judge's Report and Recommendation if the party fails to file timely objections designating the particular issue.”).

The Court has reviewed the unopposed R & R, and, finding no clear error, the Court adopts Judge Orenstein's R & R in its entirety pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the Court grants Defendants' motion for summary judgment as to Plaintiff's Title VII, NYSHRL and NYCHRL hostile work environment claims, and denies Defendants' motion for summary judgment in all other respects. In accordance with the Court's June 27, 2014 Order, the parties are directed to submit a joint pre-trial order within thirty (30) days of the date of this Memorandum and Order.

SO ORDERED.

REPORT AND RECOMMENDATION

JAMES ORENSTEIN, United States Magistrate Judge:

Plaintiff Heidi Husser (“Husser”), an employee in the Division of School Facilities (“DSF”) within the New York City Department of Education (“DOE”), has accused the DOE and two of her supervisors of gender-based discrimination and retaliation, in violation of federal, state, and municipal law. See Docket Entry (“DE”) 16 (Second Amended Complaint) (“Complaint”).

The defendants now seek summary judgment. DE 43. Upon a referral from the Honorable Margo K. Brodie, United States District Judge, I now make this report, and for the reasons set forth below, respectfully recommend that the court grant the motion with respect to the hostile work environment claims and deny it in all other respects.

A. Facts

The following brief summary of background facts is drawn from the parties' statements of undisputed facts pursuant to Local Civil Rule 56.1 and set forth in the light most favorable to Husser as the non-moving party. See Local Civ. R. 56.1; Fed.R.Civ.P. 56(a); Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir.2006); DE 46 (Defendants' Rule 56.1 Statement) (“Def. Stmt.”); DE 51 (Plaintiff's Rule 56.1 Statement) (“Pl. Stmt.”); see also DE 44 (defendants' memorandum) (“Memo”); DE 48 (defendants' reply memorandum) (“Reply”); DE 50 (Husser's memorandum in opposition) (“Opp.”). A more detailed summary of the facts pertinent to each particular claim is set forth at the start of the discussion of that claim.

Husser began working for the DOE on August 19, 2008, and is currently employed as the DSF's Director of Labor Relations. Husser's supervisors in that position include DSF's Chief Executive Officer (“CEO”), defendants John Shea (“Shea”), and also DSF's Executive Director, defendant John O'Connell (“O'Connell”). Complaint ¶¶ 4–8.

Husser's annual salary started at $80,749. On July 1, 2009, when the DOE raised the salaries of all of its employees, Husser's annual pay rose to $83,577. Pl. Stmt. ¶¶ 9, 46; Def. Stmt. ¶¶ 9, 46; Stodola Decl. Ex. S (base salary chart) (“Salary chart”) at 4. Husser's salary is lower than that of the directors of eight other DSF components: Bernard Orlan, director of Environmental Health & Safety; Angelo Lisa, director of Emergency Preparedness; Al Boccio, director of Information Technology (“IT”) Services; Volkert Braren, director of Program Management; William Wilson, director of Human Resources; Salvatore Calderone, director of Field Operations; Frank Borowiec, director of Facility Management Services; and Bramnarain Mahadeo, director of Maintenance. Pl. Stmt. ¶ 15, 48; Def. Stmt. ¶¶ 15, 48. All of the allegedly comparable directors are male; aside from Husser, the only other female Director at DSF was Sheila Dancy–Wilkins, who held that position from 2008 to 2010. Complaint ¶ 32.

Husser alleges that DSF had a sexist culture that was hostile to women in general and to her in particular. She asserts that throughout her employment, high-ranking officials, including defendants Shea and O'Connell, routinely referred to women as “girls,” “hot,” “doable” and “adorable,” commented about having sex with certain women in the office, and permitted and encouraged sexual innuendo and sexually demeaning name-calling. Husser more specifically complains that Shea and O'Connell subjected her to a dozen specific offensive remarks and incidents from late 2009 through July 2012. See Complaint ¶¶ 12–15; Pl. Stmt. ¶¶ 85, 103, 106, 108–09.

Husser informally complained about the foregoing to the DOE's Executive Director of the Office of Equal Employment Opportunity (“OEEO”), Mecca Santana (“Santana”) in March or April 2012. She filed a formal complaint with OEEO on July 5, 2012, alleging sexual harassment, unlawful pay practices, and gender discrimination. OEEO assigned an investigator to the matter. Husser was interviewed on July 9, 2012, and as the investigation continued, Husser made additional allegations about her pay and work environment. Complaint ¶ 35; Pl. Stmt. ¶¶ 20–22; Def. Stmt. ¶¶ 20–22.

Husser claims that over the next several months, the defendants retaliated against her for complaining by: asking her for the first time to justify her absences; closely monitoring her performance; excluding her from meetings, conference calls, and group email exchanges; and temporarily revoking her privilege to use a DSF car. Complaint ¶¶ 36–37; Pl. Stmt. ¶¶ 23, 25, 121–28; Def. Stmt. ¶¶ 23, 25; Opp. at 23.

The OEEO issued its final report on Husser's complaint on October 11, 2102. It found Husser's claims were not substantiated, but criticized Shea for failing to self-report Husser's complaint. Pl. Stmt. ¶¶ 26–28; Def. Stmt. ¶¶ 26–28. The report also noted a “history of inappropriate conduct by all involved parties” and that Shea had stated that “Husser's salary, based upon her title, should be higher.” Stodola Decl., Ex. K (the “OEEO Report”) at 23. The report further recommended that “any reasons for Ms. Husser's salary being substantially lower than other directors at DSF be explicitly tied in with performance.” Id. Shea received a two-week suspension following the report. Pl. Stmt. ¶ 131; DE 52 (Paster Decl.), Ex. A (“Shea Dep.”) at 246–47.

Husser claims that the defendants continued to retaliate against her after the OEEO issued its report. Prior to the OEEO Report, Husser and all other DSF directors held parallel positions on the Division's organizational chart. On January 15, 2013, however, in a move that Husser describes as an effective demotion, the DOE appointed Linda Green (“Green”) to the newly created position of Chief Administrative Officer, and had Husser and three other directors—Boccio, Braren, and Wilson—report directly to her rather than to CEO Shea. Soon thereafter, Green made Husser move to a cubicle that Husser found less convenient. Complaint ¶ 39; Pl. Stmt. ¶¶ 30–35; Def. Stmt. ¶¶ 3035; Salary Chart at 3; see Stodola Decl., Ex. R (“Organizational Chart”). In addition, Husser asserts that she was excluded from some participation in a union arbitration in September 2013, although the parties agree that then-Executive Director Estelle later invited Husser to attend the arbitration and Husser declined. Green also allegedly denied Husser's request to attend a continuing legal education (“CLE”) program in December 2013. Pl. Stmt. ¶¶ 36, 39–44; Def. Stmt. ¶¶ 36, 39–44.

B. Proceedings

Husser filed a complaint with the EEOC on November 21, 2012 and was issued a right-to-sue letter on July 25, 2013. She filed her initial complaint in this court alleging a violation of the Equal Pay Act on December 12, 2012, DE 1; Husser then filed her first amended pleading on April 12, 2013, adding claims under the Human Rights Laws and New York State and New York City, DE 12; and then filed a second amended pleading adding claims under Title VII of the Civil Rights Act of 1964, as amended—the operative Complaint that the instant motion addresses—on September 6, 2013. See 42 U.S.C. §§ 2000e et seq. (“Title VII”); 29 U.S.C. § 206(d) (the “Equal Pay Act” or “EPA”); N.Y. Exec. Law §§ 290 et seq. (the “NYSHRL”); N.Y.C. Admin. Code §§ 8–

101 et seq. (the “NYCHRL”); Complaint ¶¶ 42–46 (Count 1 and 2; Equal Pay Act claims), ¶¶ 47–48, 53–54, 59–60 (Counts 3, 6, and 9; discrimination, hostile work environment, and retaliation claims under Title VII), ¶¶ 49–50, 55–56, 61–62 (Counts 4, 7, and 10; similar claims under the NYSHRL), ¶¶ 51–52, 5758, 63–64 (Counts 5, 8, and 11; similar claims under the NYCHRL). Following discovery, the parties filed the instant fully briefed motion on January 12, 2015, see DE 43, and the court referred it to me by order dated April 3, 2015.

The defendants move to dismiss each of Husser's claims. They argue that Husser's pay-related claims fail both because her job is not sufficiently comparable to the other DSF directors about whose higher salaries Husser complains and because her salary was determined pursuant to a gender-neutral plan for managerial compensation. The defendants further assert that they are entitled to judgment on the retaliation claims because Husser cannot demonstrate that she was subjected to any cognizable adverse employment action and that the record—and in particular the length of time between Husser's complaints and the actions about which she complains—does not permit an inference that they had any retaliatory motive. Finally, they contend that the record does not support of the proposition that Husser was subjected to a hostile work environment. I address each issue in turn below after first discussing the applicable legal standard and procedural matters.

A. Standard of Review

“Summary judgment is warranted only upon a showing by the movant 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.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.2008) (citations and internal quotation marks omitted); accord Moore v. City of New York, 2015 WL 1198084, at *3 (E.D.N.Y. Mar. 16, 2015); Fed.R.Civ.P. 56(a). A fact is material if it “ ‘might affect the outcome of the suit under the governing law.’ ” Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue is presented if “ ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Holtz, 258 F.3d at 69. In determining whether to grant summary judgment, a court is confined to issue-finding, not issue-resolution. Jillian Mech. Corp. v. United Serv. Workers Union Local 355, 882 F.Supp.2d 358, 364 (E.D.N.Y.2012) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994)). The court does not “weigh the evidence and resolve ... factual issues” but rather “determine[s] as a threshold matter whether there are genuine unresolved issues of material fact to be tried.” Owens v. New York City Hous. Auth., 934 F.2d 405, 408 (2d Cir.1991) (quoting Gibson v. Am. Broadcasting Cos., 892 F.2d 1128, 1132 (2d Cir.1989)); see also Fed.R.Civ.P. 56(a).

The moving party must demonstrate “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); accord Moore, 2015 WL 1198084, at *3. If the moving party meets that burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir.2010) (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505). “To defeat a summary judgment motion, the nonmoving party ... may not rely on conclusory allegations or unsubstantiated speculation.” Id. (internal citations omitted).

Moreover, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Monclova v. City of New York, 2014 WL 4828813, at *8 (E.D.N.Y. Sept. 29, 2014) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). In assessing the evidence, “all reasonable inferences are drawn in favor of the non-movant [.]” Wellesley v. Debevoise & Plimpton LLP, 346 Fed.Appx. 662, 662 (2d Cir.2009).

In evaluating an employer's motion for summary judgment in the context of an employment discrimination action, courts must be “especially cautious” in light of the difficulty of locating direct evidence of the employer's discriminatory intent, and the need to evaluate circumstantial proof of its intentions. Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.1999). Nevertheless, “summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact.” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir.1994). “Although intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Edwards v. Jericho Union Free Sch. Dist., 55 F.Supp.3d 458, 465 (E.D.N.Y.2014) (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).

B. Timeliness

The defendants assert—again in a footnote—that Husser's federal hostile work environment claim is time-barred because such claims must be brought within 300 days of the discriminatory act. Memo at 16 n. 9; see 42 U.S.C. § 2000e–5(e)(1). But a hostile work environment claim by its very nature involves repeated conduct over time rather than a discrete occurrence on a particular day. See, e.g., Ferraro v. New York City Dep't of Educ., 2015 WL 1476392, at *7 (E.D.N.Y. Mar. 31, 2015) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). It is therefore timely if at least one act contributing to the claim occurred within the limitations period. See Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir.2004) (citing Morgan, 536 U.S. at 115, 122 S.Ct. 2061). As the defendants concede, at least one such alleged act occurred in 2012. See Complaint ¶ 16; Memo at 16 n. 9; Opp. at 25. The federal hostile work environment claim is therefore timely.

C. Equal Pay

a. The Applicable Legal Standard

Husser claims that the defendants willfully failed to pay her wages equal to those paid to men for equal work. Complaint ¶¶ 42–44. The Equal Pay Act “prohibits employers from discriminating among employees on the basis of sex by paying higher wages to employees of the opposite sex for ‘equal work.’ ” Chepak v. Metro. Hosp., 555 Fed.Appx. 74, 76 (2d Cir.2014) (quoting Belfi, 191 F.3d at 135). For purposes of both federal and state law, this claim is governed by the familiar burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Rambacher v. Bemus Point Cent. Sch. Dist., 307 Fed.Appx. 541, 543 (2d Cir.2009) (citing McDonnell Douglas, 411 U.S. at 792, 93 S.Ct. 1817); Setelius v. Nat'l Grid Elec. Svcs. LLC, 2014 WL 4773975, at *6 (E.D.N.Y. Sept. 24, 2014) (applying same analysis to state law discrimination claims); Sista v. CDC Ixis North Am., Inc., 2005 WL 356973, at *6 n. 7 (S.D.N.Y. Feb. 15, 2005) (same).

Applying that burden-shifting analysis to the instant equal pay claim requires Husser to make an initial showing that her employer pays different wages to employees of the opposite sex; that the differentially paid employees perform equal work on jobs requiring equal skill, effort and responsibility; and that the jobs are performed under similar working conditions. E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 255 (2d Cir.2014) (citing Belfi, 191 F.3d at 135). If she makes that showing, “the burden shifts to the employer to demonstrate that wage disparities are due to ... [a system of] differentials based on any factor other than sex, provided it was implemented for a legitimate business reason.” Forden v. Bristol Myers Squibb, 63 Fed.Appx. 14, 15 (2d Cir.2003) (quoting Belfi, 191 F.3d at 136). “Once the employer proves that the wage disparity is justified [,] ...'the plaintiff may

counter the employer's affirmative defense by producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex discrimination.' ” Ryduchowski v. Port Auth. of N.Y. & N.J., 203 F.3d 135, 142 (2d Cir.2000) (quoting Belfi, 191 F.3d at 136).

b. Prima Facie Case

Husser predicates her equal pay claims on a comparison of her salary with the higher salaries of eight male directors of other DSF components. DSF has a pay scale that assigns to each position a pay level designated by an alphanumeric code; the following chart summarizes the pay levels, the corresponding annual salary ranges, and the actual annual salaries paid to Husser and each of her putatively comparable male colleagues.