Villar v. City of N.Y.

Decision Date29 September 2015
Docket NumberNo. 09–CV–7400 (DAB).,09–CV–7400 (DAB).
Citation135 F.Supp.3d 105
Parties Maria VILLAR, Plaintiff, v. The CITY OF NEW YORK, et al., Defendants.
CourtU.S. District Court — Southern District of New York

Linda M. Cronin, Dominick Peter Revellino, Rocco G. Avallone, Cronin & Byczek, LLP, Susan Penny Bernstein, Law Office of Jeffrey L. Goldberg, P.C., Lake Success, NY, for Plaintiff.

Aliza Jordana Balog, Jeremy Laurence Jorgensen, John Stephen Schowengerdt, Mark Andrew Osmond, Phyllis Gail Calistro, New York City Law Department, New York, NY, for Defendants.



, District Judge.

Plaintiff Maria Villar ("Plaintiff" or "Villar"), a Hispanic female, brings this employment discrimination action against the City of New York, Deputy Inspector Michael Yanosik, and Lieutenant John P. McGovern (collectively, "Defendants") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,

the New York State Human Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL"), 42 U.S.C. § 1981, and 42 U.S.C. § 1983.1 Plaintiff maintains that Defendants discriminated against her on the basis of her race and sex by subjecting her to improper discipline, terminating her, failing to promote her, denying her overtime, and subjecting her to a hostile work environment, and retaliated against her for her complaints of discrimination. Defendants now move pursuant to Fed.R.Civ.P. 56

for Summary Judgment on each of Plaintiff's claims.

For the reasons set forth herein, Defendants' Motion for Summary Judgment is granted in part and denied in part.

A. The Parties

Defendant the City of New York (the "City") is a municipal corporation that operates the New York City Police Department ("NYPD"). Defendant Deputy Inspector Michael Yanosik ("Yanosik") was Commanding Officer of NYPD's Building Maintenance Section ("BMS") from at least November 2004 to August 2006 and from May 2008 to at least October 2008. (Defs.' 56.1 Stmt. ¶¶ 49, 54; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 49; Pl.'s 56.1 Stmt. ¶ 74.) Defendant Lieutenant John P. McGovern ("McGovern") was a lieutenant in NYPD's Internal Affairs Bureau ("IAB") on July 9, 2004. (Pl.'s 56.1 Stmt. ¶ 13; Avallone Decl. Ex. RRR.) Plaintiff Maria Villar was appointed a Police Officer in NYPD on January 30, 1995. (Defs.' 56.1 Stmt. ¶ 4.) At all times relevant to this action prior to her termination, Plaintiff was employed by the City as a Lieutenant in the NYPD. (See Defs.' 56.1 Stmt. ¶ 1.)

B. Arrests of Plaintiff's Brothers and Issuance of Charge

On or about July 5, 2004, Plaintiff's brother, Sergio De Los Santos ("Sergio"), was arrested on drug-related charges. (Defs.' 56.1 Stmt. ¶ 16.) Late that night, Sergio called Plaintiff and informed her that he had been arrested but expected to be released the following morning. (Defs.' 56.1 Stmt. ¶ 17; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 17; Villar Dep. 39:5–40:1.) On July 6, 2004, Plaintiff called the Queens Central Booking Court Unit and asked if Sergio had been released. (Defs.' 56.1 Stmt. ¶ 18; Villar Dep. 40:16–17.) According to Plaintiff, the Court Clerk at Queens Central Booking told Plaintiff that Sergio was not going to be released because there was a big investigation involving search warrants and wiretaps. (Defs.' 56.1 Stmt. ¶ 18; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 18; Villar Dep. 41:7–9.) That same day, Plaintiff called the Expedited Affidavit Program at the Queens Central Booking Intake Unit and asked Police Officer Kelvin McKoy for the status of Sergio's case. (Defs.' 56.1 Stmt. ¶ 19; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 19; Villar Dep. 44:20–25.) Plaintiff was friends with McKoy and had worked with him for two years at Queens Central Booking. (Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 19.) McKoy told Plaintiff that "the folder wasn't ready yet," which meant that Sergio was not going to be arraigned yet, and that his case involved a wiretap. (Defs.' 56.1 Stmt. ¶ 20; Villar Dep. 71:19–72:8.)

At some point on July 6, 2004, Plaintiff called another of her brothers, Alberto Villar ("Alberto") and told him that Sergio had not yet been released and that there was a big investigation involving tape recordings of Sergio and search warrants. (Defs.' 56.1 Stmt. ¶ 21; Villar Dep. 48:2–24.) Alberto was already aware that Sergio had been arrested. (Defs.' 56.1 Stmt. ¶ 21.) It is not clear whether this conversation occurred before or after Plaintiff's conversation with McKoy. (Compare Villar Dep. 44:22–48:24, with Schowengerdt Decl. Ex. G, at DOA0047–DOA0048.) At some point after her conversation with McKoy, Plaintiff again called Alberto to tell him that Sergio still had not been arraigned. (Defs.' 56.1 Stmt. ¶ 23.)

Unbeknownst to Plaintiff and Alberto, the NYPD's Narcotics Division was investigating Alberto and Sergio, had placed a wiretap on their telephones, and recorded the July 6, 2004 conversations between Alberto and Plaintiff. (Defs.' 56.1 Stmt. ¶¶ 24–25.) According to Detective Joseph Fusco, who was involved in the investigation of Alberto and Sergio, after his investigation team learned that Plaintiff had told Alberto that wiretaps were involved in the investigation, they decided to arrest Alberto and to dismantle the case prematurely. (Schowengerdt Decl. Ex. G, at DOA006–007.) At the time Alberto was arrested, he was in possession of an NYPD duffel bag containing two kilograms of heroin. (Defs.' 56.1 Stmt. ¶ 31.) He subsequently pled guilty to criminal felony charges, and Sergio pled guilty to the sale of narcotics. (Defs.' 56.1 Stmt. ¶¶ 38–39.)

The Queens Narcotics Division subsequently notified the NYPD Internal Affairs Bureau ("IAB") of Plaintiff's call to Alberto. (Defs.' 56.1 Stmt. ¶ 40; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 40.) On July 7, 2004, three supervisors came to Plaintiff's house, informed her that she was being suspended, and removed her firearms and shield. (Defs.' 56.1 Stmt. ¶ 42.) When Plaintiff asked one of her supervisors, Captain Timothy Kerr, why she was being suspended, he told her, "as per Chief Campisi, you are suspended for the good order of the department." (Villar Dep. 203:1–4.) On July 15, 2004, a Charge was issued against Plaintiff by NYPD, stating that Plaintiff "did wrongfully and without authorization divulge or discuss official Department business with a person, identity known to this Department." (Schowengerdt Decl. Ex. E, at DOA0150.) Plaintiff was served with the Charge when she returned from her suspension on August 9, 2004. (Defs.' 56.1 Stmt. ¶ 45; Schowengerdt Decl. Ex. E, at DOA0151.) At this time, she was assigned to the Safety Division Borough and placed on modified duty; modified duty involves assignment only to non-enforcement duties pending a determination of fitness to perform police duties. (Defs.' 56.1 Stmt. ¶¶ 45–46, 48.)

C. Assignment to NYPD Building Maintenance Section

In November 2004, Plaintiff was transferred to BMS, where she remained on modified duty. (Defs.' 56.1 Stmt. ¶ 47; Villar Dep. 212:19–22, 223:17–18.) Plaintiff's supervisor at BMS, Yanosik, told Plaintiff that pursuant to orders he had received, she did not have supervisory status; Yanosik subsequently placed Plaintiff under the supervision of a Sergeant and assigned her to work with a Police Officer who was on full duty. (Defs.' 56.1 Stmt. ¶¶ 49–50; Pl.'s Resp. Defs.' 56.1 Stmt. ¶¶ 49–50; Pl.'s 56.1 Stmt. ¶ 36; Meyer Dep. 31:22–24; Villar Dep. 213:14–15.) Plaintiff alleges and submits evidence that Yanosik permitted Spencer Colgan, a Caucasian male lieutenant who was on modified duty from December 28, 2005 to September 27, 2006, to maintain his supervisory responsibilities while on modified duty; Plaintiff also alleges that Yanosik gave some of her responsibilities to Colgan. (Avallone Decl. Ex. FF; Pl.'s Resp. Defs.' 56.1 Stmt. ¶¶ 58–59; Meyer Dep. 43:12–16, 65:10–24.) Captain David Meyer, who also worked at BMS at this time, testified that he believed Yanosik did not give Plaintiff supervisory responsibilities because she "wasn't involved or wasn't one of the guys." (Meyer Dep. 53:8–9.) According to Plaintiff and Meyer, Yanosik also denied her overtime during this period but permitted Caucasian male lieutenants to work a significant amount of overtime. (Pl.'s 56.1 Stmt. ¶¶ 49–50; Meyer Dep. 39:25–40:22.)

In August 2006, Yanosik took an educational leave of absence and was replaced by Meyer. (Defs.' 56.1 Stmt. ¶ 51.) Meyer permitted Plaintiff to take on supervisory duties, and Plaintiff does not allege that she was treated poorly under Meyer's command. (Defs.' 56.1 Stmt. ¶ 52; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 52; Villar Dep. 215:4–9.)

In May 2008, Meyer transferred out of BMS and Yanosik returned as BMS's Commanding Officer and Plaintiff's supervisor. (Defs.' 56.1 Stmt. ¶ 54; Meyer Dep. 54:19–21.) In June 2008, Yanosik asked Plaintiff to file some papers in his office and to move a desk and conference table in his office five feet. (Defs.' 56.1 Stmt. ¶ 55.) On the morning of June 20, 2008, Yanosik allegedly yelled at Plaintiff and threatened to suspend her if she did not provide him with a particular form she had created on her own time; as a result, Plaintiff had to go home to retrieve the form. (Villar Decl. ¶ 16.)

Plaintiff also alleges that after Yanosik returned, he significantly reduced her overtime. (Pl.'s 56.1 Stmt. ¶ 60.) According to Plaintiff's pay stubs, the only overtime she received between May 2008 and October 2008 was approximately twenty-nine hours earned between April 27, 2008 and May 10, 2008. (Avallone Decl. Ex. FFF.) Plaintiff does not provide evidence of what other BMS lieutenants earned in overtime between May 2008 and October 2008. (Pl.'s 56.1 Stmt. ¶ 60.) The Parties agree that Plaintiff was the third highest overtime earner among the five lieutenants assigned to BMS from January 2007 through July 2008, but, as Plaintiff notes, Yanosik only became her supervisor in May 2008. (Defs.' 56.1 Stmt. ¶ 83; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 83; see Schowengerdt Decl. Ex. M.)

D. Plaintiff's Department Trial and Termination


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