Bush v. Fordham University
| Decision Date | 25 September 2006 |
| Docket Number | No. 04 Civ. 01847(RJH).,04 Civ. 01847(RJH). |
| Parties | Tonia BUSH, Plaintiff, v. FORDHAM UNIVERSITY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Sandra D. Frelix, Sandra D. Frelix, P.C., New York, NY, for Plaintiff.
Daniel F. Murphy, Jr., Sean H. Close, Putney Twombly Hall & Hirson LLP, New York, NY, for Defendant.
This is an employment discrimination action. Plaintiff Tonia Bush brought this action against her employer Fordham University ("Fordham"), asserting claims that on the basis of her race, she was denied promotion and subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981, the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. Bush also claims that Fordham retaliated against her for filing charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"), in further violation of Title VII, § 1981, and New York law. Last, Bush asserts a state law claim for intentional infliction of emotional distress.
Defendant moved for summary judgment [41]. For the reasons set forth below, defendant's motion is granted.
Unless otherwise indicated, the following facts are either undisputed or evaluated in the light most favorable to the plaintiff.1
Tonia Bush, an African—American female, was hired by Fordham on January 11, 1999. (Pl. Affirmation 1; Def. 56.1 Statement ¶ 2.) Throughout her employment at Fordham, the terms of her employment were governed by the collective bargaining agreement between Fordham and Local 153 of the Office and Professional Employees International Union ("Union"), which represents Fordham's clerical employees. (Compl. ¶22; Def. 56.1 Statement ¶4.) The collective bargaining agreement describes six salary levels for clerical employees. (Local 153 Contract art. XVIII § 3, Def. Ex. G.) Bush was hired as a Senior Secretary at the Fordham University School of Law, a Level 4 position. On May 1, 2000, Bush received a promotion to Executive Secretary, a Level 5 position, with a commensurate salary increase. (Pl. Affirmation 1; Def. 56.1 Statement ¶¶ 5, 7).
In 2002, Bush applied for the Level 5 position of Executive Secretary to Shapoor Vali, the Associate Dean of Fordham College at Lincoln Center. Bush interviewed with Vali, Robert Grimes (Dean), and Judy Kelly (administrative assistant to Dean Grimes). (Def. 56.1 Statement ¶9.2) Vali, Grimes, and. Kelly also interviewed two Caucasian candidates, but they unanimously preferred Bush for the position. (Grimes Aff. 115, Def. Ex. BB.) On September 16, 2002, Bush transferred to her new position as Executive Secretary to Associate Dean Vali. (Pl. Mot. in Opp'n to Def. Mot. for Summ. J. ("Pl.Opp'n") 2, 6-7; Def. 56.1 Statement ¶ 8.)
In April 2003, Bush decided to apply to have her position reclassified as a Level 6 Senior Executive Secretary position. Bush requested a recommendation from Dean Grimes, but he declined, citing Bush's lack of experience and responsibility. (Grimes Aff. ¶¶ 6-7; e-mail from Plaintiff to Robert Grimes (Apr. 29, 2003), Pl.Ex. T.) The next day, Bush hand-delivered her application to Nicole Beckford, Human Resources Manager, who is also African—American. Beckford refused to accept the application because Dean Grimes had not agreed to the upgrade. Undaunted, Bush mailed the application to Beckford. (Compl. ¶¶ 15-17; Def. 56.1 Statement ¶¶ 15-18.) On May 31, Beckford denied Bush's application, explaining that Bush's current duties did not rise to the level of responsibility required of a Level 6 employee. (Def.Ex.M.) The precise criteria for a Level 6 upgrade are relevant to the Court's Title VII analysis and will be discussed in greater detail, infra.
On June 11, 2003, Bush filed a charge of discrimination with the EEOC. (Def. 56.1 Statement ¶ 28.) Bush alleged that Fordham denied her request for an upgrade because of her race. (EEOC Charge of Discrimination (June 11, 2003), at 2, Def Ex. C.) The EEOC dismissed her charge upon its determination that the information obtained did not establish discrimination and issued a notice of right to sue on November 10, 2003.
Bush applied again for a Level 6 upgrade in November 2003. The newly formed Upgrade Selection Committee, created pursuant to the July 2003 Union contract and comprised of two Union delegates and two members of Human Resources, evaluated her application. On November 20, the committee denied her request for an upgrade, explaining that the responsibilities of her position were not commensurate with Level 6 and citing the fact that she lacked a recommendation from Grimes. (Memorandum from the Upgrade Selection Committee to Plaintiff (Nov. 20, 2003), Pl.Ex. L.) Bush then filed the instant action on March 8, 2004, alleging that Fordham's denial of her Level 6 upgrade applications in May and November 2003 constituted discrimination under Title VII.3
Then, in April 2004, Bush applied to have her position reclassified as a Level 7 Legal Secretary position. On May 12, Beckford denied Bush's application. Beckford explained that under the Union contract, Level 7 employees must be hired into a Level 7 position, not promoted from other clerical positions. (Letter from Nicole Beckford to Plaintiff (May 12, 2004), Pl.Ex. L; see also Local 153 Contract art. XVIII § 3, Def. Ex. G.) In addition, Legal Secretaries are employed exclusively at Fordham School of Law, not at Fordham College where Bush was employed. (Pl. Ex.L.)
In her complaint, Bush claims that Judy Kelly, a Caucasian employee, was promoted from Level 5 Executive Secretary, a Union position, to Administrative Assistant, a non-union position, despite the fact that she possessed less education, experience, and seniority than Bush.4 Bush claims that this disparate treatment demonstrates racial discrimination.
Fordham hired Kelly on September 5, 2000 as a Level 5 Executive. Secretary reporting directly to Dean Grimes. In 2001, before Bush had transferred to the Dean's office, Grimes requested that Fordham promote Kelly to Administrative Assistant, a non-union position that is exempt from federal and state wage and hour laws and is not subject to the collective bargaining agreement. Grimes requested the upgrade in part because Kelly's position as the Dean's secretary exposed her to confidential information regarding personnel and labor relations issues. (Grimes Aff. ¶ 10.) Kelly managed the Dean's office and regularly worked overtime. In addition, Kelly's counterpart in the Dean's Office at Fordham College at Rose Hill was a non-union Administrative Assistant. (Id.) Accordingly, on September 1, 2001, Fordham promoted Kelly to the position of Administrative Assistant reporting directly to Dean Grimes. Kelly never held the Level 6 title for which Bush applied, nor did she ever apply for it. (Def. 56.1 Statement ¶¶ 31-33.)
Shortly after Bush transferred from the law school to Fordham College, she asked Grimes to sign her request for tuition remission benefits for the Spring 2003 semester.5 Grimes asked Kelly to look into whether Bush's request complied with Fordham procedures for requesting such benefits. When Bush found out that Kelly had asked Human Resources whether Bush was taking more courses than permitted, she became upset and told Kelly that she was not following Grimes's instructions correctly. (Pl. Dep. 121-25; Def. 56.1 Statement ¶¶ 37-39.) According to Bush, Kelly became "intimidated." (Pl. Dep.124-26.)
From that point forward, the relationship between Bush and Kelly deteriorated. (Pl.Dep.121-22.) Bush made various allegations to Grimes and the Union regarding Kelly, including that Kelly failed to give Bush telephone messages, and that Kelly refused to greet or say goodbye to Bush. Bush also alleged that Kelly too closely scrutinized Bush's behavior in the office. (Def. 56.1 Statement ¶ 41; Def. Ex. O, Q.) Kelly likewise complained to Grimes about Bush's behavior on several occasions. According to Kelly, Bush regularly stared at Kelly. (Def. 56.1 Statement ¶ 42.) In April 2003, Bush began keeping a journal that tracked Kelly's movements in the office, including the time that Kelly left and returned from trips to the restroom. (Pl. Ex.Z.)
On January 22, 2004, Grimes met with Bush to discuss the procedure for submitting timesheets, a source of ongoing disagreement between Bush and Kelly. Beckford and George Williams, the Union Shop Steward, were also present. (Def. 56.1 Statement ¶ 43.) In the middle of the meeting, while Grimes was explaining the proper procedure, Bush walked out, ignoring Grimes's direction for her to return. (Def. 56.1 Statement ¶ 44.) On January 26, Beckford issued Bush a written warning, informing her that any future acts of insubordination would result in disciplinary action, up to and including suspension and termination. (Def. 56.1 Statement ¶ 44; Def. Ex. S.)
Between January 1 and July 19, 2004, Bush called in sick for work twenty-three times, despite the fact that employees covered by the collective bargaining agreement accrue only twelve paid sick days each calendar year. (Def. 56.1 Statement ¶¶ 45-46.) On July 1, Grimes asked Bush to attend a meeting with Beckford, Williams, and Kathleen Ruggiero, the Union Chief Shop Steward, to discuss her poor attendance. Prior to the start of the meeting, Bush informed Ruggiero and Williams that she refused to attend. (Def.Ex. T.) Grimes warned Bush that a refusal to attend would be considered insubordination. Bush persisted in her refusal to attend, so Beckford...
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