Concepcion v. City of N.Y.

• Decision Date: 29 January 2016
• Docket Number: 15 Civ. 2156 (AJP)
• Parties: TINA R. CONCEPCION, Plaintiff, v. CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

TINA R. CONCEPCION, Plaintiff, v. CITY OF NEW YORK, Defendant.

15 Civ. 2156 (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

January 29, 2016

OPINION & ORDER

ANDREW J. PECK, United States Magistrate Judge:

Pro se plaintiff Tina Concepcion brings this action against her employer, the City of New York Department of Transportation, alleging that she was discriminated against on the basis of her race, gender, national origin, age, color, religion, and disability, and retaliated against for her complaints, in violation of Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the New York State Human Rights Law and the New York City Human Rights Law. (Dkt. No. 26: 2d Am. Compl.)

Presently before the Court is the City's summary judgment motion. (Dkt. No. 40: Notice of Mot.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 30.) For the reasons set forth below, the City's summary judgment motion is GRANTED with respect to Concepcion's Title VII, ADA, ADEA and NYSHRL discrimination and retaliation claims, as well as Concepcion's ADA and NYSHRL failure-to-accommodate claims. The Court declines to exercise supplemental jurisdiction over Concepcion's NYCHRL claims, which are dismissed without prejudice.

FACTS

Background

The evidence in the summary judgment record, construed in the light most favorable to Concepcion as the nonmoving party, is as follows:

Concepcion, born on January 10, 1967, was forty-eight years old at the time she commenced this action. (Dkt. No. 26: 2d Am. Compl. ("SAC") at 3.) Concepcion identifies as a "dark skinn[ed]" African-American female, and religiously identifies as a Jehovah's Witness. (Dkt. No. 60-1: Concepcion Opp. Br. Exs.: Concepcion Dep. at 120.) Concepcion claims that she is disabled in her back, neck, right hip, right leg, and right arm, and has carpal tunnel syndrome in her right wrist and trigger finger in her right hand. (Id. at 120, 121, 123.) Concepcion asserts that her back and neck disabilities limit her mobility and cause her pain. (Id. at 121-22.) Concepcion's disabilities were caused by a car accident in 2009 (id. at 126), and a slip and fall in 2012 (id. at 121).

Concepcion attended New York Technical College, but does not have a college degree. (Id. at 140-41.) Concepcion has been employed by the New York City Department of Transportation ("DOT") as a Procurement Analyst level I since 2008. (Id. at 134, 137.) Concepcion alleges that she has been denied a promotion, training, performance evaluations, the opportunity to work overtime hours, Family Medical Leave Act ("FMLA") time, a workers' compensation grant, and reasonable accommodation for her disabilities. (SAC at 3; Concepcion Dep. at 154-55.) Concepcion has never heard any disparaging comments about her race, ethnicity, gender, age, disability or religion at work. (Id. at 154-55.) Her only proof of discrimination is that she was not promoted or given training. (Id. at 155.)

In June 2014, Concepcion filed an Equal Employment Opportunity ("EEO") complaint with DOT's internal EEO officer (Dkt. No. 41: City 56.1 Stmt. ¶ 58), and filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on November 4, 2014 (Dkt. No. 2: Compl. at 6-10).

Facts Relevant to Concepcion's Reasonable Accommodation Claims

Concepcion's EEOC complaint identifies her disability as "limited mobility-back, walking, lifting." (Dkt. No. 2: Compl. Exs. at 9.) Concepcion's request for an ergonomic chair, keyboard, computer monitor, mouse, and adjustable keyboard tray to accommodate her disabilities were received by Abina Lee in the DOT EEO Office, and Urenia Rosa. (Dkt. No. 26-3: SAC Exs. at 16, 36-37.)¹ In 2014, Concepcion was provided with a mouse, keyboard, and keyboard tray and can perform her work using them, albeit with some discomfort. (Dkt. No. 56: Murrell Aff. Ex. A: Concepcion Dep. at 57, 60.) Concepcion was given an ergonomic chair in 2014, and another in 2015, but because the new chair arrived damaged it had to be re-ordered. (Id. at 61.) As of Concepcion's deposition on October 19, 2015, she claimed that the chair she was using at work did not provide proper neck support. (Id. at 61-62.) Concepcion further asserts that she has been denied a disability parking permit. (See, e.g., SAC at 3; Dkt. No. 60-6: Concepcion Opp. Br. Exs. at 26; Dkt. No. 60-7: Concepcion Opp. Br. Exs. at 13),

Facts Relevant to Concepcion's Denial of Overtime Claim

Overtime hours are granted to DOT employees at their supervisors' discretion when a unit "has back-log work or when the amount of workload cannot be completed during the work hours, or as other needs arise." (Dkt. No. 56: Murell Aff. Ex. F: Carolan Aff. ¶ 9.) Concepcion's supervisor, Bahman Ghaffarsamar, has not requested overtime for Concepcion because her "current workload is not extensive enough to warrant overtime." (Id.) "Several other employees" supervisedby Mr. Ghaffarsamar also have not been granted overtime. (Id.) Some DOT procurement analysts are paid at a higher rate than their listed annual pay basis, which might indicate that they are compensated for overtime hours. (See, e.g., Dkt. No. 60-3: Concepcion Opp. Br. Exs. at 15-30.)

Facts Relevant to Concepcion's Denial of Performance Evaluation Claim

Concepcion has not received a performance evaluation since March 2013. (Dkt. No. 56: Murrell Aff. Ex. F: Carolan Aff. ¶ 8; see also Dkt. No. 26: SAC at 3; Dkt. No. 60: Concepcion Opp. Br. at 5.) DOT "has no policy that performance evaluations must be given on a regular basis," and most employees reporting to the DOT Assistant Commissioner/Agency Chief Contracting Officer ("ACCO") Nancy Carolan have not received more recent performance evaluations. (Carolan Aff. ¶ 8.)

Facts Relevant to Concepcion's Denial of Training Claim

Training is offered to DOT employees based on their tasks. (Dkt. No. 56: Murrell Aff. Ex. F: Carolan Aff. ¶ 7.) ACCO Nancy Carolan reviews supervisor requests for employee training. (Id.) Upon hire, Concepcion was provided with the requisite training for her position, and has received all of the required agency/citywide training. (Id.) Concepcion does not need additional training to "adequately perform her work" (id.), but believes that the "certified buyers certificate" would help her career and is related to her job duties (Dkt. No. 60-1: Concepcion Opp. Br. Exs.: Concepcion Dep. at 143, 180-81).

Facts Relevant to Concepcion's Failure to Promote Claim

Concepcion has applied and interviewed for several Procurement Analyst positions. (Dkt. No. 56: Murrell Aff. Ex. A: Concepcion Dep. at 78.) In 2013, Concepcion interviewed with Susan Gabrielli for Procurement Analyst level II and III positions. (Id. at 78.) Andrew Cammock, Nicola Rahman and Ana Betancourt were hired to fill the positions for which Concepcion interviewed. (Murrell Aff. Ex. F: Carolan Aff. ¶¶ 2-5.) Andrew Cammock and Nicola Rahman already were level III Procurement Analysts for other City agencies. (Id. ¶¶ 3-4.) When Ana Betancourt was hired, she was a Procurement Analyst I with the City Department of Human Resources Administration, but previously had served as a Procurement Analyst II for the Contract Office of the Administration for Children's Services. (Id. ¶ 5.) On April 28, 2015, Concepcion interviewed for a level III Procurement Analyst position in the DOT Bridges Unit. (Murrell Aff. Ex. E: Oliveto Aff. ¶ 3.) Seven candidates were interviewed for the role and Concepcion ranked sixth out of seven. (Id.) Employment offers were extended to the top two candidates, and when they declined, the DOT Bridges Unit decided to wait for a "list call" based on a civil service test previously given for the title. (Id. ¶¶ 3-5) Chassidi Miner, a Procurement Analyst for the City's Department of Education, responded to the list call, performed well in her interview and was hired. (Id. ¶ 5.)

Concepcion asserts that for at least one of the positions she did not receive, ACCO Nancy Carolan called the hiring agency and must have said "something negative" about her. (Dkt. No. 60-1: Concepcion Opp. Br. Exs.: Concepcion Dep. at 186-87.) Although Concepcion has never heard any insult or derogatory remark from anyone at DOT about any of her protected characteristics (id. at 154-55, 174), "people" used to tell her that ACCO Nancy Carolan did not like her (id. at 174). Concepcion suspects that Carolan's dislike is at least in part "revenge," because Concepcion's mother was a City employee who might previously have denied contracts Carolan attempted to register; but Concepcion also asserts that Carolan's actions are a sign of race-based discrimination, or a "personality" issue. (Id. at 175-76.)

Concepcion states that procurement analysts at all levels perform the same job function, and that years of experience qualify a procurement analyst for promotion. (Id. at 154.) On June 25, 2014, Concepcion emailed Mayor de Blasio "regarding Procurement Analyst promotions," and DOT Director of Personnel Jean Frankowski replied to Concepcion stating that "there is no automatic maturation between levels in the Procurement Analyst title. Levels 2 and 3 require more experience and entail more complex responsibilities. The completion of the probation period as a Procurement Analyst Level 1 does not ensure either." (Dkt. No. 26-1: SAC Exs. at 9.) Concepcion's union representative likewise informed her that there are no promotional exams for procurement analysts, rather any movement "from level to level . . . is at management's discretion." (Dkt. No. 60-3: Concepcion Opp. Br. Exs. at 31.)

Facts Related to Concepcion's Retaliation Claim

On November 4, 2014, Concepcion filed a complaint with the EEOC. (Dkt. No. 2: Compl. Ex. at 6-10.) Concepcion's EEOC complaint alleges that she was discriminated against on the basis of her race, sex, age, disability, national origin, and color, and retaliated against. (Id. at 8.) Concepcion complained...