Husser v. N.Y.C. Dep't of Educ.

• Decision Date: 30 September 2015
• Docket Number: No. 12–CV–6095 (MKB)(JO).,12–CV–6095 (MKB)(JO).
• Parties: Heidi HUSSER, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, John Shea, and John O'Connell, Defendants.
• Court: U.S. District Court — Eastern District of New York

137 F.Supp.3d 253

Heidi HUSSER, Plaintiff,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, John Shea, and John O'Connell, Defendants.

No. 12–CV–6095 (MKB)(JO).

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

Signed Sept. 30, 2015.

Daniel E. Clifton, Elaine Lynette Smith, Rachel S. Paster, Lewis, Clifton & Nikolaidis, P.C., New York, NY, for Plaintiff.

Damion Kenneth Lee Stodola, City of New York, Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge:

On December 12, 2012, Plaintiff Heidi Husser commenced this action against the New York City Department of Education. (Compl., Docket Entry No. 1.) By Second Amended Complaint filed September 6, 2013, Plaintiff named John Shea and John O'Connell as additional defendants. (Second Am. Compl., Docket Entry No. 16.) Plaintiff brings claims of discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL") and the New York City Human Rights Law, N.Y.C. Admin. Code § 8–107 ("NYCHRL"), as well as wage discrimination in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d) ("EPA"), and retaliation in violation of 29 U.S.C. § 215(a)(3).¹ Plaintiff's claims arise out of her employment at the New York City Department of Education's Division of School Facilities.

Defendants moved for summary judgment, and, on April 3, 2014, the Court referred Defendants' motion to Magistrate Judge James Orenstein for a report and recommendation. By Report and Recommendations dated September 15, 2015 ("R & R"), Judge Orenstein recommended that the Court (1) grant Defendants' motion for summary judgment as to Plaintiff's hostile work environment claims, and (2) deny Defendants' motion in all other respects.² (R & R 30, Docket Entry No. 56.) No party has objected to the R & R, and the time for doing so has passed.

A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "Failure to object to a magistrate judge's report and recommendation within the prescribed time limit ‘may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object.’ " Sepe v. N.Y. State Ins. Fund, 466 Fed.Appx. 49, 50 (2d Cir.2012) (quoting United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997) ); see also Almonte v. Suffolk Cty., 531 Fed.Appx. 107, 109 (2d Cir.2013) ("As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point." (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.2003) )); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.2010) ("[A] party waives appellate review of a decision in a magistrate judge's Report and Recommendation if the party fails to file timely objections designating the particular issue.").

The Court has reviewed the unopposed R & R, and, finding no clear error, the Court adopts Judge Orenstein's R & R in its entirety pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the Court grants Defendants' motion for summary judgment as to Plaintiff's Title VII, NYSHRL and NYCHRL hostile work environment claims, and denies Defendants' motion for summary judgment in all other respects. In accordance with the Court's June 27, 2014 Order, the parties are directed to submit a joint pre-trial order within thirty (30) days of the date of this Memorandum and Order.

SO ORDERED.

REPORT AND RECOMMENDATION

JAMES ORENSTEIN, United States Magistrate Judge:

Plaintiff Heidi Husser ("Husser"), an employee in the Division of School Facilities ("DSF") within the New York City Department of Education ("DOE"), has accused the DOE and two of her supervisors of gender-based discrimination and retaliation, in violation of federal, state, and municipal law. See Docket Entry ("DE") 16 (Second Amended Complaint) ("Complaint").

The defendants now seek summary judgment. DE 43. Upon a referral from the Honorable Margo K. Brodie, United States District Judge, I now make this report, and for the reasons set forth below, respectfully recommend that the court grant the motion with respect to the hostile work environment claims and deny it in all other respects.

I. Background

A. Facts

The following brief summary of background facts is drawn from the parties' statements of undisputed facts pursuant to Local Civil Rule 56.1 and set forth in the light most favorable to Husser as the non-moving party. See Local Civ. R. 56.1 ; Fed.R.Civ.P. 56(a) ; Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir.2006) ; DE 46 (Defendants' Rule 56.1 Statement) ("Def. Stmt."); DE 51 (Plaintiff's Rule 56.1 Statement) ("Pl. Stmt."); see also DE 44 (defendants' memorandum) ("Memo"); DE 48 (defendants' reply memorandum) ("Reply"); DE 50 (Husser's memorandum in opposition) ("Opp."). A more detailed summary of the facts pertinent to each particular claim is set forth at the start of the discussion of that claim.

Husser began working for the DOE on August 19, 2008,¹ and is currently employed as the DSF's Director of Labor Relations. Husser's supervisors in that position include DSF's Chief Executive Officer ("CEO"), defendants John Shea ("Shea"), and also DSF's Executive Director, defendant John O'Connell ("O'Connell"). Complaint ¶¶ 4–8.

Husser's annual salary started at $80,749. On July 1, 2009, when the DOE raised the salaries of all of its employees, Husser's annual pay rose to $83,577. Pl. Stmt. ¶¶ 9, 46; Def. Stmt. ¶¶ 9, 46; Stodola Decl. Ex. S (base salary chart) ("Salary chart") at 4. Husser's salary is lower than that of the directors of eight other DSF components: Bernard Orlan, director of Environmental Health & Safety; Angelo Lisa, director of Emergency Preparedness; Al Boccio, director of Information Technology ("IT") Services; Volkert Braren, director of Program Management; William Wilson, director of Human Resources; Salvatore Calderone, director of Field Operations; Frank Borowiec, director of Facility Management Services; and Bramnarain Mahadeo, director of Maintenance. Pl. Stmt. ¶ 15, 48; Def. Stmt. ¶¶ 15, 48.² All of the allegedly comparable directors are male; aside from Husser, the only other female Director at DSF was Sheila Dancy–Wilkins, who held that position from 2008 to 2010. Complaint ¶ 32.

Husser alleges that DSF had a sexist culture that was hostile to women in general and to her in particular. She asserts that throughout her employment, high-ranking officials, including defendants Shea and O'Connell, routinely referred to women as "girls," "hot," "doable" and "adorable," commented about having sex with certain women in the office, and permitted and encouraged sexual innuendo and sexually demeaning name-calling. Husser more specifically complains that Shea and O'Connell subjected her to a dozen specific offensive remarks and incidents from late 2009 through July 2012. See Complaint ¶¶ 12–15; Pl. Stmt. ¶¶ 85, 103, 106, 108–09.

Husser informally complained about the foregoing to the DOE's Executive Director of the Office of Equal Employment Opportunity ("OEEO"), Mecca Santana ("Santana") in March or April 2012. She filed a formal complaint with OEEO on July 5, 2012, alleging sexual harassment, unlawful pay practices, and gender discrimination. OEEO assigned an investigator to the matter. Husser was interviewed on July 9, 2012, and as the investigation continued, Husser made additional allegations about her pay and work environment. Complaint ¶ 35; Pl. Stmt. ¶¶ 20–22; Def. Stmt. ¶¶ 20–22.

Husser claims that over the next several months, the defendants retaliated against her for complaining by: asking her for the first time to justify her absences; closely monitoring her performance; excluding her from meetings, conference calls, and group email exchanges; and temporarily revoking her privilege to use a DSF car. Complaint ¶¶ 36–37; Pl. Stmt. ¶¶ 23, 25, 121–28; Def. Stmt. ¶¶ 23, 25; Opp. at 23.

The OEEO issued its final report on Husser's complaint on October 11, 2102. It found Husser's claims were not substantiated, but criticized Shea for failing to self-report Husser's complaint. Pl. Stmt. ¶¶ 26–28; Def. Stmt. ¶¶ 26–28. The report also noted a "history of inappropriate conduct by all involved parties" and that Shea had stated that "Husser's salary, based upon her title, should be higher." Stodola Decl., Ex. K (the "OEEO Report") at 23. The report further recommended that "any reasons for Ms. Husser's salary being substantially lower than other directors at DSF be explicitly tied in with performance." Id. Shea received a two-week suspension following the report. Pl. Stmt. ¶ 131; DE 52 (Paster Decl.), Ex. A ("Shea Dep.") at 246–47.

Husser claims that the defendants continued to retaliate against her after the OEEO issued its report. Prior to the OEEO Report, Husser and all other DSF directors held parallel positions on the Division's organizational chart. On January 15, 2013, however, in a move that Husser describes as an effective demotion, the DOE appointed Linda Green ("Green") to the newly created position of Chief Administrative Officer, and had Husser and three other directors—Boccio, Braren, and Wilson—report directly to her rather than to CEO Shea. Soon thereafter, Green made Husser move to a cubicle that Husser found less convenient. Complaint ¶ 39; Pl. Stmt. ¶¶ 30–35; Def. Stmt. ¶¶ 3035; Salary Chart at 3; see Stodola Decl., Ex. R ("Organizational Chart"). In addition, Husser asserts that she was excluded from some participation in a union arbitration in September 2013, although the parties agree that then-Executive Director Estelle later invited Husser to attend the arbitration and Husser declined. Green also allegedly denied Husser's request...