Cabrera v. Nyc
| Decision Date | 29 June 2006 |
| Docket Number | No. 04 Civ.2688(RWS).,04 Civ.2688(RWS). |
| Citation | 436 F.Supp.2d 635 |
| Parties | Yvette CABRERA, Plaintiff, v. NYC; NYC Health and Hospitals Corp.; Bellevue Hospital Center; Victor Infante; CWA 1180; Dorothy Harris; Sarah Rodriguez; and Dena Rakower, Defendants |
| Court | U.S. District Court — Southern District of New York |
Andrew J. Schatkin, Jericho, NY, for Plaintiff.
Michael A. Cardozo, Corporation Counsel of City of New York, New York, NY (Jonathan Bardavid, Assistant Corporation Counsel, of counsel) for HHC Defendants.
Semel, Young & Norum, New York, NY (Amy S. Young, of counsel) for Defendants CWA Local 1180 and Dorothy Harris.
Defendants the City of New York ("the City"), New York City Health and Hospitals Corporation ("HHC"), Bellevue Hospital Center ("Bellevue"), Victor Infante ("Infante"), Sarah Rodriguez ("Rodriguez"), Dena Rakower ("Rakower") (collectively, the "HHC Defendants"), and Defendants Local 1180 of the Communications Workers of America ("Local 1180") and Dorothy Harris ("Harris") (collectively, the "Union Defendants") have moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment to dismiss the complaint of Plaintiff Yvette Cabrera ("Cabrera"). Plaintiffs complaint, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, and the New York State Human Rights Law (the "NYHRL"), New York Executive Law § 296, alleged that all Defendants discriminated against her based on her age and national origin. For the reasons set forth below, the motions are granted and the complaint is dismissed.
The complaint, filed April 8, 2004, alleged a first cause of action of failure to represent against the Union Defendants, a second cause of action against the City of New York, HHC, Bellevue, and Local 1180 for age and national origin discrimination in violation of Title VII and the ADEA, a third cause of action against all Defendants for intentional infliction of emotional distress, and a fourth cause of action against all Defendants for age and national origin discrimination in violation of the NYHRL.
The Union Defendants moved to dismiss Cabrera's complaint on May 13, 2004. In an opinion dated September 13, 2004, this Court dismissed the first and second causes of action as to the Union Defendants. Thus, the following claims survived the motion to dismiss: (1) Title VII and ADEA discrimination claims against HHC, Bellevue, and the City of New York; (2) a state-law discrimination claim against all Defendants; and (3) an intentional infliction of emotional distress claim against all Defendants.
Discovery proceeded, and the HHC Defendants and the Union Defendants filed separate motions for summary judgment on January 27, 2006. Plaintiff filed her opposition to each motion on February 26 2006, and the motions were marked fully submitted on March 6, 2006.
The HHC Defendants and the Union Defendants submitted statements of material facts pursuant to Local Rule 56.1(a). Cabrera did not respond to these Rule 56.1 statements as required by Local Rule 56.1(b), and therefore the facts set forth in the Defendants' Rule 56.1 statements are deemed admitted where supported by the record. See Local Rule 56.1(c); Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003); Evans v. City of New York, 308 F.Supp.2d 316, 319 n. 2 (S.D.N.Y.2004).
Rather than respond to the Defendants' Rule 56.1 statements, Cabrera submitted "Plaintiff Yvette Cabrera's Statement of Undisputed Facts Pursuant to Rule 56.1," which summarizes certain of the deposition testimony. For purposes of this motion only, the HHC Defendants accept as true the employment actions about which Cabrera has complained.
The material facts as set forth below are not disputed except as noted.
Cabrera began her employment with HHC at Bellevue as a provisional office associate on or about December 10, 1984. When she was hired she was provided a "Reminder to Provisional Employees." This reminder stated: On or about November 23, 1984, Cabrera signed and acknowledged that she received the reminder. According to Cabrera, she did not read the reminder and signed it automatically.
On or about April 14, 1986, Cabrera was provisionally promoted to the title of Principal Administrative Associate ("PAA"). Cabrera was again provided the "Reminder to Provisional Employees" and signed and acknowledged receipt of the reminder.
On or about March 19, 1989, Cabrera was provisionally promoted to the title of PAA II.
Cabrera was a provisional employee throughout her employment at Bellevue. At no time did she have a permanent civil service title.
In or about January 1995, Rakower became Cabrera's supervisor. During an unspecified time period in 1996, Rakower asked Cabrera—the timekeeper of the department—to mark Rakower present on the payroll although she was actually on unpaid leave. Cabrera complied with the request. After an anonymous complaint, Rakower was reprimanded by her supervisor. Cabrera claims Rakower blamed her for the anonymous complaint and subjected her to harassment.
On or about May 28, 1997, Cabrera was transferred to the Virology Clinic, where Rakower no longer supervised her. After the transfer she had no contact with Rakower.
Upon her transfer to the Virology Clinic, Cabrera was supervised by Martha Robles ("Robles") and Steven Fischer ("Fischer"). Robles is a Hispanic female and Fischer is a white male. Cabrera has alleged that Robles discriminated against her by transferring her to the Virology Clinic, and that the transfer caused Cabrera "great anxiety and great mental suffering," (Compl.¶ 12). Cabrera also has claimed that Robles was nasty to Hispanic employees.
In or around May 1997, Harris told Cabrera that Local 1180 could not do anything about her transfer to the Virology Clinic. Cabrera did not request that a grievance be filed.
In January 1998, Cabrera was transferred to the Dermatology Clinic, where she supervised clerical staff. Cabrera's supervisor in the Dermatology Clinic was Infante, an African-American male. Robles no longer supervised Cabrera after her transfer to dermatology.
From June 1998 to approximately June 1999, Cabrera supervised the clerical staff in the Dental and Oral Clinics, as well as the Dermatology Clinic. Cabrera did not complain to Harris or Local 1180 about her working conditions during this time.
Cabrera has alleged that when she began supervising the Dermatology Clinic, one of her subordinates, Martha Somer ("Sourer"), was disrespectful toward her and challenged her authority. Cabrera alleges that she complained to Infante about Somer but Infante did not address the problem. Cabrera has alleged that Infante's failure to discipline Somer was discriminatory. Like Cabrera, Somer is Hispanic. Cabrera has not complained about Local 1180's handling of any incidents with Somer.
Cabrera also has alleged that Infante discriminated against her by assigning her the "worst people" to supervise and by not allowing Cabrera to take sick time. Cabrera acknowledges that after she complained to her union she was allowed to take the sick time.
On September 13, 1999, the Department of Citywide Administrative Services for the City of New York certified a list of individuals who passed the promotional examination for the civil service title Principal Administrative Associate.
Beginning on or about October 20, 2000, Bellevue began replacing its provisional PAAs with individuals from the certified eligible list. All provisional PAAs had their employment terminated in reverse seniority order with the most junior provisional employees being terminated first.
From October 20, 2000 until June 25, 2002, five civil service hiring pools were held for the title of PAA. A total of ten provisional PAAs at Bellevue were replaced by individuals from the certified eligible list during this time.
On February 20, 2003, another civil service hiring pool was held. On February 21, 2003, Cabrera was notified that as a result of a permanent appointment from the civil service pool, her services as a provisional PAA at Bellevue were terminated effective March 7, 2003.
On June 24, 2003, another civil service hiring pool was held and as a result Wanda Guddemi ("Guddemi"), Cynthia Meyers ("Meyers"), Cynthia Belcher ("Belcher"), Marie Diggs ("Diggs"), and Gloria Walker ("Walker") had their provisional employment as PAAs at Bellevue terminated. Guddemi is an Hispanic female. Meyers is a white female. Belcher, Diggs, and Walker are all African-American females. Guddemi, Meyers, Belcher, Diggs, and Walker all had underlying permanent civil service appointments, and therefore were offered positions at Bellevue within their previous civil service titles. All of these employees, except Diggs, returned to their previous civil service title. Diggs declined the position and retired.
On August 14, 2003, the last relevant civil service hiring pool was held. Rivan Blackman ("Blackman") had his provisional employment as a PAA at Bellevue terminated and was replaced by an individual from the certified eligible list. Blackman had the underlying civil service title of clerical associate and was returned to his permanent position as a clerical associate. As of August 14, 2003, all provisional PAAs at Bellevue had been replaced by permanent employees who were on the certified eligible list. In total, twenty provisional PAAs were replaced by permanent employees who were on the certified eligible list. Six provisional PAAs were offered positions within their underlying civil service title.
Seven provisional PAAs who did not have an underlying civil service position were...
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