Gaffney v. Department of Info. Tech. & Telecomm., 04 Civ. 10179.

• Decision Date: 05 March 2008
• Docket Number: No. 04 Civ. 10179.,04 Civ. 10179.
• Parties: Robin GAFFNEY, et al, Plaintiffs, v. DEPARTMENT OF INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS et al., Defendants.
• Court: U.S. District Court — Southern District of New York

536 F.Supp.2d 445

Robin GAFFNEY, et al, Plaintiffs, v. DEPARTMENT OF INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS et al., Defendants.

No. 04 Civ. 10179.

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

March 5, 2008.

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Eugenie Gilmore, Law Offices of Eugenie Gilmore, New York, NY, for Plaintiffs.

Amy Grossberg, Blanche Jayne Greenfield, New York City Law Department, New York, NY, for Defendants.

DECISION & ORDER

VICTOR MARRERO, District Judge.

Plaintiffs Robin Gaffney ("Gaffney"), Polycarpe Kalembwe ("Kalembwe"), and Albert Stewart ("Stewart") (collectively, "Plaintiffs") brought this action, against the New York City Department of Information Technology and Telecommunications ("DOITT"); NYC-TV, which was formerly known as Crosswalks Television ("Crosswalks"); the City of New York ("City"); Arick Wierson ("Wierson"); Yocasta Delgado ("Delgado"); Walter Garaicoa ("Garaicoa"); Michael McKenna ("McKenna"); and Seth Unger ("linger") (collectively, the "Defendants"). Plaintiffs allege discrimination in employment on the bases of age, race, color, gender, and disability under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"); the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 ("§ 1981") and 1983 ("§ 1983"); and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"). Plaintiffs also bring supplementary State and City discrimination claims based on discrimination and retaliation in the terms, conditions, and privileges of employment, as protected Under the New York State Human Rights. Law, Executive Law § 290 et seq. ("NYSHR") and the Administrative Code of the City of New York § 8-101 et seq. ("NYCAC") (collectively, the "Local Laws").

Defendants move for summary judgment pursuant to Federal Rules of Civil Procedure 56 ("Rule 56") on the grounds that Plaintiffs cannot establish a prima facie case of discrimination or retaliation and that Plaintiffs cannot show that the legitimate nondiscriminatory, nonretaliatory business reasons for Defendants' actions were false and a pretext for discrimination. For the reasons stated below, Defendants' motion is DENIED in part and GRANTED in part.

I. BACKGROUND¹

A. DEFENDANTS

Crosswalks was a group of cable channels set aside by the City for educational and governmental use. Crosswalks was supervised by the City and operated and administered by DoITT, a municipal agency of the City. The Research Foundation of the City University of New York ("Foundation"), pursuant to a Memorandum of Understanding ("MOU") with DoITT, also had limited administrative responsibilities for Crosswalks. Under the MOU, Foundation was a contractor that provided services to the City, and the individuals employed pursuant to the MOU ("Foundation Line Employees") were paid on the Foundation budget line ("Foundation Line"), and they were technically not City employees. Foundation Line Employees signed Personnel Action Forms each year, which stated that their "employment [was] subject to [the] availability of funds," that their employment's length was "not fixed for any period," and that the Foundation had discretion over "promotions, salary increases or terminations." (Defts.' 56.1 ¶ 4.) Due to a municipal fiscal crisis in 2002 and 2003, the City required DoITT to make budget cuts totaling $500,000 in savings. In early 2003, DoITT laid off employees in Crosswalks' production unit ("Production Unit") as part of a reduction in force. On June 6, 2003, DoITT discontinued the MOU, terminating all Foundation Line Employees, and used the resulting savings in administrative costs to fund seventeen new Crosswalks positions at DoITT.

At all relevant times, Wierson was the General Manager of Crosswalks; Delgado was the Director of Administration at Crosswalks for Foundation Line Employees; McKenna was the Senior Operations Manager of Crosswalks; Unger was the Director of Programming; and Garaicoa was the Senior Editor at Crosswalks.

B. PLAINTIFFS

1. Gaffney

On November 29, 1999, Gaffney, a black female, was hired by DoITT to work for Crosswalks as a provisional producer, for which she was paid an hourly wage on the DoITT budget line ("DoITT Line"), not the Foundation Line. Gaffney was never promoted to a higher civil service title or position, and she never received a merit raise. On May 2, 2003, McKenna met with Gaffney, advising her that, due to fiscal reasons, DoITT was laying off her and seven other Production Unit employees (collectively, the "Layoffs"). The Layoffs were comprised of four white, two Hispanic, and two black individuals, with six being males and two females. DoITT retained three producers from the Production Unit, namely: Adele Merlino ("Merlino"), a white female; Robert Kalm, a male ("Kalm"); and Harry Hunkele, a male ("Hunkele") (it is unclear from the record as to Kalm and Hunkele's racial classification). At the time of Gaffney's termination, three white free lance producers (one male and two females) performed work for Defendants. Gaffney requested that she be allowed to work as a free-lancer, but Defendants refused. At the time of Gaffney's termination, there were no black full-time or senior producers at DoITT.

Within two months after Gaffney was terminated, Defendants posted three Production Unit openings at DoITT, namely two Segment Coordinator positions and a Content Coordinator position (collectively, the "Coordinator Positions"). The Coordinator Positions had similar duties to Crosswalks' traditional producer positions and the Coordinator Positions started at higher salary levels than Gaffney's pretermination salary. Gaffney did not apply for any of the open Coordinator Positions, and Defendants did not offer either position to Gaffney. According to Defendants, the Segment. Coordinator positions were filled by Emily Post, a white female, and Steven Butler-Aleyande ("Butler-Aleyande"), a black male who, was 38 years old at the time, of the reorganization. Gaffney disputes that Butler-Aleyande actually filled the Segment Coordinator position, asserting that he held the position in title only while continuing to perform his previous function of Nighttime Producer. The Content Coordinator position was filled by Elizabeth Gerst, a white female.

2. Kalembwe

In 1992, Kalembwe, a black male who was 53 years-old and who suffered from diabetes mellitus at the time of his termination, began working as Crosswalks' MIS Network Support Manager. Kalembwe was a Foundation Line Employee.

On August 31, 1998, Kalembwe land a group of co-workers, including Stewart, commenced litigation in the Southern District of New York, Docket Number 98 Civ. 7316(BSJ) ("1998 Case"), against Crosswalks, alleging unlawful discrimination. Kalembwe, as part of the case, claimed that Crosswalks discriminated against him on the bases of race and national origin. The 1998 Case was dismissed by an order dated February 21, 2002.

Kalembwe signed a Personnel Action Form for the fiscal year July 1, 2002 through June 30, 2003. During a March 26, 2003 meeting with DoITT's management ("Termination Meeting"), Kalembwe and other Foundation Line Employees were notified that the MOLT would be discontinued on June 6, 2003 and that all Foundation Line Employees would be terminated. Those present at the Termination Meeting, which included Stewart and Kalembwe, were informed that a number, of positions were available at DoITT, and Defendants invited all Foundation Line Employees to apply for the open positions.

On March 27, 2003, Kalembwe applied for the Broadcast MIS Administrator position ("MIS Position") at DoITT. He did not apply for any other available positions. Kalembwe, and three white individuals who were all under forty years of age, interviewed for the MIS Position. DoITT decided not to hire anyone to fill the MIS Position, choosing instead' to outsource the position and centralize all MIS staff outside of Crosswalks. Defendants rescinded the MIS Position vacancy posting.

Kalembwe's diabetes affected him at work by causing him to fall asleep for five to ten minutes on rare occasions (roughly once every nine to eleven months) and other effects such as feeling woozy and fatigued. Kalembwe informed McKenna and his other supervisors of his diabetic condition and its potential effects. As an accommodation, Kalembwe requested that McKenna be patient and understanding if he fell asleep at work. Kalembwe stated that McKenna was understanding and met this accommodation.

3. Stewart

In 1993, Stewart, a black male who was 43 years-old at the time of his termination, began working at Crosswalks as a Transmission Operator and was a Foundation Line Employee. During his time at Crosswalks, Stewart held various positions, including Director, Assistant Director, Studio Coordinator, Cameraman, Crew Chief, and Master Control Operator ("MCO"), which was the position Stewart held at Crosswalks when he was terminated.

In 1997, Stewart filed a racial discrimination and retaliation complaint in the Southern District of New York, Docket Number 97 Civ. 9268 ("1997 Case"), against Crosswalks, DoITT, and the City (collectively, the "1997 Defendants"). In 2000, the City moved for summary judgment, and Stewart's opposition included an affidavit provided by Kalembwe. The 1997 Case was scheduled for trial in 2002, and Kalembwe's name was included on Stewart's witness list, which was submitted to the 1997 Defendants' attorneys. The 1997 Case settled in August 2002 and did not proceed to trial.

Stewart signed a Personnel Action Form for the fiscal year July 1, 2002 through June 30, 2003. Defendants informed Stewart at the Termination Meeting that his employment was being terminated, and they invited him to apply for positions at DoITT. Stewart applied for four different...