Bansal v. City of N.Y.

POOJA BANSAL AND GLENDA VILLAREAL GARCIA, Plaintiffs, v. CITY OF NEW YORK AND NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM (NYCERS), Defendants.

18 CV 878 (ENV)(LB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

February 24, 2020

REPORT & RECOMMENDATION

BLOOM, United States Magistrate Judge:

Pro se Plaintiffs, Pooja Bansal and Glenda Villareal Garcia (collectively "plaintiffs"),¹ bring this action against the City of New York and New York City Employees' Retirement System ("NYCERS") (collectively "defendants") pursuant to Title VII of the Civil Rights act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, alleging that defendants unlawfully discriminated against them on the basis of their race and national origin and retaliated against them for complaining about discrimination. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 37. The Honorable Eric N. Vitaliano referred defendants' motion for summary judgment to me for a report and recommendation in accordance with 28 U.S.C. § 636(b). For the following reasons, defendants' motion for summary judgment should be granted.

BACKGROUND

The facts are derived from defendants' Rule 56.1 statement, plaintiffs' Rule 56.1 counterstatement,² defendants' response to plaintiffs' 56.1 counterstatement, and the parties' declarations and exhibits. The facts are considered in the light most favorable to the non-moving party.

Plaintiffs' Employment with NYCERS

This case presents the unfortunate, but far too common tale of how two employees became dissatisfied and unhappy at their jobs when they believed a new employee was being treated more favorably than they were. Plaintiffs are both Asian American attorneys who worked for defendants until they resigned in 2015. The newly employed attorney was not Asian American.

Plaintiff Garcia is Asian American and of Filipino Origin. Pls.' Counterstatement at 22 ¶ 1. Plaintiff Garcia commenced her employment with NYCERS as an Agency Attorney, Level 1 on September 8, 2009. Defs.' 56.1 Statement ¶ 5. Prior to joining NYCERS, plaintiff Garcia had no City or pension law experience. Id. at ¶¶ 6-7. On March 11, 2012, on the recommendation of General Counsel Karen Mazza ("Mazza"), plaintiff Garcia was promoted to Agency Attorney, Level 2, id. at ¶ 9, and on June 14, 2013, plaintiff Garcia was promoted to Agency Attorney, Level 3, also on the recommendation of Ms. Mazza. Id. at ¶ 11. Plaintiff Garcia's salary was $78,563and within the salary range for an Agency Attorney, Level 3 in 2013, which was between $66,970 and $98,864. Id. at ¶¶ 11-12; Defs.' Ex. E; Defs.' Ex. H.

As an Agency Attorney, Level 3, plaintiff Garcia's job duties included "review[ing] legal documents for completeness and legal authority, us[ing] legal resources to research pension related issues, review[ing] and respond[ing] to domestic relations orders, represent[ing] the agency in disciplinary hearings, draft[ing] contracts, maintain[ing] NYCERS' document retention policy, and writ[ing] reports and memoranda to agency staff explaining or clarifying legal issues. Id. at ¶¶ 14-15; Declaration of Karen Mazza ("Mazza Decl.") ¶ 6. Ms. Mazza also asked plaintiff Garcia to serve as the EEO Officer for NYCERS. Id. at ¶ 16; Mazza Decl. ¶ 7. For the duration of plaintiff Garcia's employment with NYCERS, plaintiff Garcia was assigned to work in a cubicle. Id. at ¶ 17.

Plaintiff Bansal is Asian American of Indian Origin. Pls.' Counterstatement at 22 ¶ 2. Plaintiff Bansal commenced her employment with NYCERS as an Agency Attorney, Level 3 on August 18, 2013. Defs.' 56.1 Statement ¶ 27. Plaintiffs' salary was $79,349.³ Plaintiff Bansal's job duties included drafting and negotiating contracts, reviewing powers of attorney, guardianship documents, domestic relations orders, as well as dealing with disciplinary actions related to employees, drafting procedural memos, and investigating allegations of fraud. Pls.' Counterstatement ¶ 29; Defs.' 56.1 Statement ¶ 29; Mazza Decl. ¶ 12. In addition to these duties,plaintiff Bansal was the Coordinator of the Language Access Program as well as NYCERS' Chief Contracting Officer. Id. at ¶¶ 30, 32. Like plaintiff Garcia, plaintiff Bansal was assigned to a cubicle for the duration of her employment with NYCERS. Plaintiff Bansal testified that with the exception of the General Counsel, all Agency Attorneys worked in cubicles. Id. at ¶ 33. Plaintiff Bansal testified that when she began her employment with NYCERS, she inquired about receiving an office, but understood from Ms. Mazza that it was customary for Agency Attorneys to work in cubicles. Garcia Dep. 30:20-31:21.

Illyse Sisolak, a Caucasian, non-Asian woman, joined the New York City Law Department as an Assistant Corporation Counsel in the Pensions Division from September 2006 to October 2011; joined the Administrative Law Division between October 2011 and October 2013; and rose to Senior Counsel in the Administrative Law Division from October 2013 where she remained until her employment with NYCERS in 2014. Defs.' 56.1 Statement ¶¶ 36, 40. Ms. Sisolak was involved in a variety of pension litigation with the Law Department, and throughout her time with the Law Department, Ms. Sisolak represented NYCERS in litigation, which is how she became acquainted with Ms. Mazza. Id. at ¶ 37; Mazza Decl. ¶ 15. On March 3, 2014, Ms. Sisolak commenced her employment with NYCERS as an Agency Attorney, Level 3, with a salary of $98,000. Id. at ¶ 40. Ms. Sisolak was paid this salary based on her eight years of pension litigation experience at the time of her hire, and her salary was within the range for an Agency Attorney, Level 3. Id. at ¶¶ 42, 43; Mazza Decl. ¶ 22.⁴ Ms. Sisolak's job duties included reviewing legal documents for completeness and legal authority, using legal resources to research pension relatedissues, reviewing and responding to Domestic Relations Orders, representing the agency in disciplinary hearings, and drafting contracts. Id. at ¶ 41. Ms. Sisolak was given an office to work in, not a cubicle. Id. at ¶ 45. Plaintiff Garcia was unaware of how Ms. Sisolak came to be assigned an office to work in, but stated she was given an office upon her hire. See Garcia Dep. 47:19-47:21.⁵ Plaintiff Bansal testified that when she asked Ms. Sisolak how she came to have an office, Ms. Sisolak told her that she had asked Ms. Mazza for an office. See Bansal Dep. 50:19-23. Plaintiffs state that by giving Ms. Sisolak an office, it appeared that Ms. Sisolak had more authority than plaintiffs. Pls.' 56.1 Counterstatement at 24 ¶ 15; Bansal Dep. 91:13-25.⁶

Plaintiffs' Wage Disparity Claim and Request for a Salary Increase

In early 2015, plaintiffs learned that Ms. Sisolak's salary was $98,000 a year by reviewing the SeeThroughNY Website, which reflected salaries for employees of the City of New York. Defs.' 56.1 Statement ¶ 46; Bansal Dep. 37:1-20; Garcia Dep. 38:9-16.

On March 16, 2015, plaintiff Garcia emailed Aldona, a member of her union, on behalf of herself and plaintiff Bansal, about filing a possible grievance, and she requested guidance regarding their rights. Id. at ¶ 81. The email stated, "[m]y colleague and I are both agency attorneys level 3. Another attorney was hired a year ago as a level 3 and is receiving a significantly higher salary than me and my colleague, about 27 percent more. We only discovered this wage disparity though SeeThroughNy." See Garcia Dep. 115:2-10. Plaintiff Garcia further explained that she and plaintiff Bansal felt they were treated unfairly by being assigned cubicles while the other attorney was given an office. Defs.' 56.1 Statement ¶ 82. Aldona replied to plaintiffs, "I'm sorry to hear that you're going through this, the agency can hire anyone they want at any salary they want aslong as they post the job for anyone to apply and as long as the hiring is the maximum rate specified within our contract." Garcia Dep. 115:12-18. Aldona further stated, "this matter is not contractual, it is not grievable. If you have some basis in believing this mater [sic] may be an EEO matter, then by all means file an EEO complaint with either your agency or the State Division of Human Rights." Garcia Dep. 115:20-24; Defs.' 56.1 Statement ¶ 83.

On March 27, 2015, plaintiffs submitted separate letters to Ms. Mazza, requesting an increase in their salaries. Plaintiffs cited another Agency Attorney, Level 3,⁷ who was being compensated at a higher rate than plaintiffs, as well as their work responsibilities and assignments that they believed supported their requests for increases in their respective salaries. See Pls.' Exs. R, S. Following their requests, Ms. Mazza met with plaintiffs separately and informed plaintiffs that their salaries were commensurate with their duties and experience. Defs.' 56.1 Statement ¶¶ 54-55; Mazza Decl. ¶¶ 25-7.

Following plaintiffs' requests for a salary increase, plaintiffs allege that there was a change in their assignments and that they were "given fewer and less important work."⁸ Id. at ¶ 57; Compl. at 5. Moreover, plaintiffs allege that "Ms. Mazza invited Ms. Sisolak to attend an out of state pension conference which previously only general counsel could attend";⁹ "Ms. Sisolak was the only attorney invited to attend a city-wide training event, which in previous years, the entire Legal department was invited to attend";¹⁰ "Ms. Mazza invited Ms. Sisolak to attend city-widemanagerial meetings";¹¹ "Ms. Sisolak was put in charge of special projects, that were highly visible to executives and NYCERS staff";¹² "Ms. Mazza personally treated Ms. Garcia disrespectfully by reprimanding and berating her in emails";¹³ "Ms. Mazza ordered her administrative assistant, Ms. Taisha Allende, to watch over Ms. Garcia and Ms. Bansal's work . . . . Ms. Mazza did not request the same actions be taken against Ms. Sisolak." See Compl. at 5.¹⁴

Also following plaintiffs' requests for a salary increase, plaintiff Bansal mistakenly...