Gordon v. City of N.Y.

ROBERT W. GORDON, ESQ., Plaintiff, v. THE CITY OF NEW YORK, MARC ANDES, MARK PALOMINO, GAYLE SANDERS,FAY LEOUSSIS, MICHAEL A. CARDOZO, DAVID SANTORO, JOHN DOE(S)AND JANE DOE(S) (names currently unknown) each in his/her officialand individual capacities, Defendants.

14-CV-6115 (JPO)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 28, 2018

OPINION AND ORDER

J. PAUL OETKEN, District Judge:

This case involves claims against the City of New York ("the City") and several of its officials pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; 42 U.S.C. §§ 1981 and 1983; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq.; the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq.; and the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq. Plaintiff Robert W. Gordon ("Gordon"), an African-American attorney formerly employed by the New York City Law Department ("the Law Department"), claims that the City of New York and six employees of the Law Department (collectively, "Defendants") discriminated against him on the basis of race and employed facially neutral practices that have a disparate impact on African Americans. Gordon further alleges that he was subjected to a hostile work environment and retaliated against for filing a complaint with the Equal Employment Opportunity Commission ("EEOC") identifying these unlawful practices. Defendants have moved for summary judgment on all of Gordon's claims.

I. Background

The following facts are drawn primarily from the parties' Rule 56.1 statements and are not subject to genuine dispute unless otherwise noted.

The Defendants in this action are the City of New York and six officials employed in the City's Law Department. The Law Department represents the City, the Mayor, other elected officials, and the City's agencies in affirmative and defensive civil litigation. (Dkt. No. 108 ("Compl.") ¶ 18.) The head of the Law Department is the City's Corporation Counsel. The Law Department consists of seventeen legal divisions, including Administrative Law, Special Federal Litigation, General Litigation, and Tort. (See Dkt. No. 140 (Plaintiff's Statement of Facts ("PSF")) ¶ 35; Compl. ¶ 20.) The divisions are further separated into units. (See PSF ¶ 1.) As relevant here, the Tort Division consists of localized borough units, and four centralized special units. (See PSF ¶ 31; Compl. ¶ 20.) One of its centralized units is the Special Litigation Unit ("SLU"), which "handles higher exposure and more complex tort cases" (PSF ¶ 52), and employed the Plaintiff in this case from 2007 to 2012.

Line attorneys in the Law Department—known as "Assistant Corporation Counsel" ("ACC")—have their performance evaluated on an annual basis. (See, e.g., PSF ¶¶ 1, 61; Dkt. Nos. 126-6, 126-7, 126-8.) In the evaluations, supervisors provide written comments in ten areas of performance, including "legal knowledge, analytical ability and research skills," "judgment," and "productivity and efficiency." (Dkt. No. 126-6 at 3-6.) ACCs receive a grade for each area, and an overall rating. The ratings range from "1"—the best score, awarded when performance "[c]onsistently exceeds highest expectations by a wide margin"—to a rating of "5"—the worst score, given when performance is "[s]ignificantly below the generally expected performance level for assistants of comparable experience." (Dkt. No. 126-6 at 7.) Immediate managers draftthe evaluation, and it can be adjusted with the input of higher-level officials. (See PSF ¶¶ 229-230; Dkt. No. 138-16 at 214:18-217:12; Dkt. No. 87-3 at 72:22-73:15.)

Evaluation scores are influential in determining whether an ACC receives a promotion. In January 2000, the Law Department implemented a Senior Counsel program, whereby ACCs could be promoted to Senior Counsel upon being nominated by their Division Chief and approved by the Corporation Counsel. (PSF ¶ 55; Dkt. No. 126-31.) Generally, promotions to Senior Counsel were limited to attorneys with at least five years of experience. (PSF ¶ 58; Dkt. No. 138-14 at 1.) Effective September 2008, the Senior Counsel program was expanded to ACCs with three or four years of experience who were "very highly qualified" and received "high evaluation score[s]." (Dkt. No. 138-14 at 1-2; see also PSF ¶ 192.)

The individual Defendants in this action are current or former officials at the Law Department, who mainly managed the Tort Division. Defendant Michael A. Cardozo ("Cardozo") served as the City's Corporation Counsel from 2002 until 2013. (Compl. ¶ 24.) Defendant Fay Leoussis ("Leoussis") has served as Chief of the Tort Division from 2001 to the present. (PSF ¶ 197.) Defendant David Santoro ("Santoro") was the Deputy Chief of the Tort Division from June 1988 until November 2013. (Compl. ¶ 30.) Defendants Mark Palomino ("Palomino") and Gayle Sanders ("Sanders") served as the Unit Chief and Deputy Unit Chief, respectively, of SLU during the relevant time period. (Compl. ¶ 27-28.) And Defendant Marc Andes ("Andes") was Plaintiff's direct supervisor in SLU from 2007 through 2011. (PSF ¶ 53; Compl. ¶ 26.)

Plaintiff Robert Gordon is a "black, African-American male." (Compl. ¶ 11.) He graduated magna cum laude from Morehouse College in 1993, and he received his J.D. from New York University School of Law in May 2004. (PSF ¶¶ 142, 144.) In August 2004, Gordonjoined the Law Department as an ACC and was assigned to the Tort Division in the Law Department's Manhattan Trial Unit ("MTU"). (PSF ¶ 1.)

In that position, Gordon was responsible for conducting compliance conferences, undertaking written motions practice, conducting depositions, arguing motions, and performing various other tasks. (PSF ¶¶ 3-4.) In July 2005, Gordon communicated to his supervisor that he was "drowning in motions" (PSF ¶ 7; Dkt. No. 126-17), and the following month, he wrote that "there is too much going on at one time for me to handle" (Dkt. No. 126-19 at 1). Forwarding Gordon's e-mail to other managers, his immediate supervisor wrote that she had "spent countless hours with [Gordon] concerning these issues" and commented that "[h]e cannot multitask and a lot of time is wasted in different ways." (PSF ¶ 10; Dkt. No. 126-19 at 1.) Soon thereafter, in August 2005, Gordon wrote letters to his immediate supervisor and to the Deputy Borough Chief, expressing his difficulty with the volume of cases, pointing out problems in how MTU was run—such as "inefficient systems," "disorganized files," and a lack of "clear guidance"—and offering various suggestions for improvement. (Dkt. No. 138-4 at 5-10; see also PSF ¶¶ 13-17, 151-155.)

Two months later, Gordon received a score of "4" on his 2005 annual evaluation, indicating performance "[b]elow the generally expected performance level for assistants of comparable experience." (PSF ¶¶ 24-25, 156.) At a subsequent meeting with Division Chief Fay Leoussis and other supervisors to discuss the evaluation, Gordon asserted that the negative rating was a result of his August 2005 letter; Gordon recalls the Deputy Borough Chief responding "yes, [the letter] had something to do with that." (PSF ¶ 158.) Gordon was subsequently placed on a corrective action plan in December 2005. (PSF ¶¶ 26, 162.) Action plans are assigned to ACCs to assist in improving job performance, and they provide a"structured approach" to work assignments and "closer supervision." (PSF ¶¶ 26-28.) Gordon filed a complaint with the Law Department's internal Equal Employment Opportunity ("EEO") office in January 2006, alleging that the poor performance rating was given in retaliation for the August 2005 letter. (PSF ¶¶ 30, 166.) In response to the complaint, the EEO Officer suggested that Gordon transfer to a different office. (PSF ¶ 31.)

In April 2006, Gordon transferred to the Tort Division's Queens Borough Office. (PSF ¶ 38.) Two months later, Leoussis informed Gordon that his "performance ha[d] improved in all areas" and he was no longer subject to "close supervision" under the action plan. (Dkt. No. 126-26; PSF ¶ 39.) Gordon received an overall rating of "2.5" on his 2006 performance evaluation. (PSF ¶ 40; Dkt. No. 126-4 at 10.) The evaluation observed that Gordon's knowledge and skills were improving and noted areas for continued improvement, such as "overall efficiency" and "organizational skills." (PSF ¶¶ 41-44; Dkt. No. 126-4 at 3-4, 10.) After another year in Queens, Gordon received an overall rating of "2" on his 2007 performance evaluation, indicating that he was "[c]learly above the generally expected performance level" and producing work that was "consistently very good." (PSF ¶¶ 180-181; Dkt. No. 138-9 at 8.)

In March 2007, Gordon requested a change in assignment or transfer to a number of different offices, including the SLU. (PSF ¶ 48.) Gordon was interviewed for a position in SLU by Defendant Marc Andes, "who highly recommended that [Gordon] be" hired. (PSF ¶ 49.) Gordon's transfer was approved, and he transferred to SLU in August 2007 and was assigned to a team led by Andes. (PSF ¶¶ 51, 53.) At the time, of the fifty full-time attorneys in SLU, only three were African American; none of the three was a supervisor or Senior Counsel. (PSF ¶ 183.) Only three months before Gordon started at SLU, another African-American attorney in the unit—Melissa Pressley—filed an internal EEO complaint charging Andes and SLU UnitChief Mark Palomino with race discrimination. (PSF ¶ 184.) And another African-American attorney in the Law Department—Laura Bonas Benjamin—had previously overheard Andes make a comment about "black people not knowing what to do if you gave then a million dollars." (PSF ¶ 185; Dkt. No. 138-12 ¶ 12.)¹

For Gordon's first three years in SLU, he received performance evaluations with an overall rating of "2," translating to "above average" performance. (PSF ¶ 61; Dkt. Nos. 126-6 at 7, 126-7 at 6, 126-8 at 6.) Each evaluation noted...