Cherry v. New York City Housing Authority

• Citation: 564 F.Supp.3d 140
• Decision Date: 30 September 2021
• Docket Number: 15-CV-6949 (MKB)
• Parties: Ivan L. CHERRY, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY and Marie Bazelais, Defendants.
• Court: U.S. District Court — Eastern District of New York

564 F.Supp.3d 140

Ivan L. CHERRY, Plaintiff,

v.NEW YORK CITY HOUSING AUTHORITY and Marie Bazelais, Defendants.

15-CV-6949 (MKB)

United States District Court, E.D. New York.

Signed September 30, 2021

Ivan L. Cherry, Brooklyn, NY, Pro Se.

Lauren L. Esposito, Nycha, New York, NY, Jane Elizabeth Lippman, Filippatos PLLC, White Plains, NY, for Defendants.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

I. Background...154

a. Employment at Unity Plaza...154

i. Gender discrimination...155

ii. Sexual orientation discrimination...156

iii. Disability discrimination...157

b. Plaintiff's suspension...158

c. EEOC Charges...159

i. July 26, 2011 EEOC Charge...159

ii. April 2013 EEOC Charge...159

d. Employment at Garvey Plaza...160

e. Plaintiff's trial pursuant to Civil Service Law Section 75...161

II. Discussion...163

a. Standard of review...163

b. Title VII and NYSHRL gender discrimination claims and NYSHRL disability discrimination claim...164

i. Title VII and NYSHRL gender discrimination claims...165

1. Prima facie case...165

A. Adverse employment actions...165

(1) Non-secretarial work and disproportionate workload...166

(2) Failure to pay overtime...168

(3) Counseling and instructional memoranda...169

B. Inference of discrimination...171

2. Legitimate, nondiscriminatory reason...174

3. Pretext...175

ii. NYSHRL disability discrimination claim...176

1. Prima facie case...177

A. Defendants’ knowledge of Plaintiff's disability...178

B. Adverse actions...178

(1) Access to kitchen sink and drying rack...178

(2) Denial of requested leave of absence...179

2. Legitimate, nondiscriminatory reason...180

3. Pretext...180

c. Hostile work environment claims...180

i. Title VII and NYSHRL hostile work environment claims based on gender discrimination...181

ii. NYSHRL hostile work environment claim based on sexual orientation discrimination...185

iii. NYSHRL hostile work environment based on disability discrimination...186

1. Unity Plaza...186

2. Garvey Plaza...187

d. Title VII, NYSHRL, and NYCHRL retaliation claims...189

e. NYCHRL gender and disability discrimination claims and gender, sexual orientation, and disability-based hostile work environment claims...191

i. Claims where the Court denies Defendants’ motion under Title VII and NYSHRL...191

ii. Claims where the Court grants Defendants’ motion under Title VII and NYSHRL...192

1. Assignment of non-secretarial work...193

2. July 29, 2011 counseling memorandum...193

A. Adverse action...193

B. Inference of discrimination...194

III. Conclusion...195

Plaintiff Ivan L. Cherry, proceeding pro se , commenced the above-captioned action on December 3, 2015, and filed an Amended Complaint on March 3, 2016, against Defendants New York City Housing Authority ("NYCHA"), Bob Agbai, Fatima Turner and Marie Bazelais. (Compl., Docket Entry No. 1; Am. Compl., Docket Entry No. 14.) In the Amended Complaint, Plaintiff asserts claims of discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act, 42 U.S.C. § 12101 et seq. (the "ADEA"), the New York State Human Rights Law, NY. Exec. Law § 290 et seq. (the "NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (the "NYCHRL"), and also alleges that he was deprived of his Fourteenth Amendment due process rights in violation of 42 U.S.C. § 1983.¹ (Am. Compl. 3.)

Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure as to Plaintiff's claims of (1) gender-based discrimination and hostile work environment in violation of Title VII, the NYSHRL and the NYCHRL, (2) disability-based discrimination and hostile work environment in violation of the NYSHRL and the NYCHRL, (3) sexual orientation-based discrimination and hostile work environment in violation of the NYSHRL and NYCHRL, and (4) retaliation claims under Title VII, the NYSHRL and the NYCHRL. (Defs.’ Mot. Summ. J. ("Defs.’ Mot."), Docket Entry No. 86; Defs.’ Mem. in Supp. Defs.’ Mot. ("Defs.’ Mem."), Docket Entry No. 87.) Plaintiff opposes Defendants’ motion. (Pl.’s Opp'n to Defs.’ Mot. ("Pl.’s Opp'n"), Docket No. 95.)

For the reasons discussed below, the Court denies in part and grants in part Defendants’ motion for summary judgment. The Court denies Defendants’ motion as to: (1) Plaintiff's gender-based discrimination claim under Title VII, the NYSHRL, and the NYCHRL with regard to Defendants’ failure to pay overtime and assignment of a disproportionately heavy workload; (2) Plaintiff's disability discrimination claims in violation of the NYSHRL and the NYCHRL; (3) Plaintiff's gender-based hostile work environment claims in violation of Title VII, the NYSHRL, and the NYCHRL; (4) Plaintiff's sexual orientation-based hostile work environment claims in violation of the NYSHRL and the NYCHRL; (5) Plaintiff's disability-based hostile work environment claims in violation of the NYSHRL and the NYCHRL; and (6) Plaintiff's gender-based discrimination claim under the NYCHRL with regard to the counseling memorandum dated July 29, 2011. The Court grants Defendants’ motion as to: (1) Plaintiff's gender discrimination claim under the Title VII and the NYSHRL based on the assignment of non-secretarial work, the issuance of counseling and instructional memoranda, and his termination; (2) Plaintiff's gender discrimination claim under the NYCHRL based on the assignment of non-secretarial work and his termination; and (3) Plaintiff's retaliation claims under Title VII, the NYSHRL and the NYCHRL.

I. Background

The following facts are undisputed unless otherwise noted.

Plaintiff identifies as a "gay, HIV [p]ositive man." (Pl.’s Stmt. of Undisputed Facts pursuant to Loc. Rule 56.1 ("Pl.’s 56.1") 1, Docket Entry No. 95-2.) On October 25, 2010, Plaintiff began working for NYCHA as a Level 3A Secretary at Fiorentino Unity Plaza ("Unity Plaza"), (Defs.’ Stmt of Undisputed Facts pursuant to Loc. Rule 56.1 ("Defs.’ 56.1") ¶ 3, Docket Entry No. 88; Human Resources R. Card, annexed to Decl. of Jane Lippman in Supp. of Defs.’ Mot. ("Lippman Decl.") as Ex. 5, Docket Entry No. 90-1), and worked at Unity Plaza until August 14, 2013, when he was transferred to Garvey Prospect Plaza ("Garvey Plaza"). (Defs.’ 56.1 ¶¶ 14, 110.) Plaintiff worked at Garvey Plaza until April 1, 2014, when Defendants transferred him to Louis Armstrong, another NYCHA site, where he worked until his termination effective September 26, 2014. (Id. ¶¶ 31, 126.) Plaintiff contends that beginning in or about January of 2012 and throughout his experience at Unity Plaza, he endured gender, sexual orientation, and disability discrimination, and retaliation, and was also subject to disability discrimination at Garvey Plaza. (Am. Compl. 3; Pl.’s Aff. ¶¶ 6, 46–55.)

a. Employment at Unity Plaza

Plaintiff worked for NYCHA as a Level 3A Secretary at the Unity Plaza location from October 25, 2010, through September 26, 2014. (Defs.’ 56.1 ¶ 3.) The Civil Service Job Specification Sheet provides that the responsibilities of the Level 3 A Secretary include both the responsibilities of the Level 2 Secretary — word processing, scheduling appointments and other general office work — and the following "more difficult duties": (1) "[s]erv[ing] as secretary to a high level employee relieving principal of routine duties and perform[ing] general office work, including scheduling appointments"; (2) "[u]tilizing automated office systems" and "perform[ing] complex word processing assignments"; (3) "[s]upervis[ing] and train[ing] subordinate staff"; (4) "[p]lan[ning], assign[ing], and review[ing] the work of subordinates"; and (5) "[s]erv[ing] as principal assistant to a supervisor of a larger section, or unit engaged in secretarial, typing, word processing and office activities." (Civil Service Job Specification Sheet 93–95, annexed to Lippman Decl. as Ex. 6, Docket Entry No. 90-1.)²

When Plaintiff started working at Unity Plaza in 2010, his supervisor was Linda Mimes. (Dep. of Ivan Cherry ("Pl.’s Dep.") 27:9–14, annexed to Lippman Decl. as Ex. 7, Docket Entry No. 90-1.) After Mimes retired on January 3, 2012, Marie Bazelais was promoted to Housing Manager and transferred to Unity Plaza where she replaced Mimes as Plaintiff's supervisor. (Defs.’ 56.1 ¶ 2; Pl.’s Dep. 28:18–29:11.) Among Plaintiff's coworkers at Unity Plaza were Housing Assistants Bob Agbai, Fatima Turner, and Diane Harvey. (Defs.’ 56.1 ¶¶ 8, 62.) Plaintiff was hired by NYCHA "off the civil service list" as a result of "a lawsuit (not involving ... [P]laintiff) that required provisional employees to be fired and people on the civil service list to be hired." (Am. Compl. ¶ 7.) After starting his job "at Unity Plaza ... [, Plaintiff] learned that [he] replaced a provisional secretary [who] worked in that office for [eight] years," which resulted in "considerable hostility toward [him] in [his] workplace in the management office at Unity Plaza, a NYCHA public housing development." (Id. ¶¶ 7–8.) Throughout the course of Plaintiff's employment at NYCHA, he was the "only male [s]ecretary." (Id. ¶ 9.)

i. Gender discrimination

Plaintiff claims that he was discriminated against because of his gender and treated less well than the female employees in the office. (Id. ¶ 19.) In support, Plaintiff alleges that in contrast to the female secretary whose office was equipped with both air conditioning and windows, (id. ¶ 13), his office lacked a window and "the air conditioner that was there for years, was removed shortly after [he] started working in that office at [Harvey's] request," (id. ¶ 11). Because Plaintiff suffers from asthma and chronic obstructive pulmonary disease, the lack of air flow in his office made it difficult for Plaintiff to breathe, but his requests for air conditioning were repeatedly denied. (Id. ¶ 12.) In addition, Plaintiff testified that the day he was suspended, as he was packing up to leave, he observed an air conditioner being installed...