Milord-Francois v. N.Y. State Office of Medicaid Inspector Gen.

FERLANDE MILORD-FRANCOIS, Plaintiff, v. THE NEW YORK STATE OFFICE OF THE MEDICAID INSPECTOR GENERAL,DENNIS ROSEN, JANINE DANIELS-RIVERA,and JOHN and JANE DOE Defendants.

19-cv-00179 (LJL)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 23, 2020

DRAFT

OPINION & ORDER

LEWIS J. LIMAN, United States District Judge:

BACKGROUND

Plaintiff Ferlande Milord-Francois ("Plaintiff" or "Milord-Francois") brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000, et seq. ("Title VII"); the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("Section 1983") and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; the New York Human Rights Law, as contained in New York State Executive Law § 296, et seq. ("NYSHRL"); and the New York City Human Rights Law, as contained in the Administrative Code of the City of New York § 8-107, et seq. ("NYCHRL"). She alleges that her employer, the New York State Office of the Medicaid Inspector General ("OMIG") ignored her complaints that she was being subjected to racist behavior by a subordinate, and that it subsequently retaliated against Plaintiff by giving her poor performance reviews and demoting her. Defendants moved for summary judgment on all claims. For the reasons that follow, the Court grants the motion as to Plaintiff's federal claims and those brought under NYSHRL, and declines to exercise supplementary jurisdiction over Plaintiff's claims brought under NYCHRL.

I. The Parties

Plaintiff Milford-Francois is a black attorney of Haitian decent who has worked as an attorney at the OMIG Office of Legal Counsel since 2010. Dkt. No. 1 ("Complaint" or "Compl.") at 7-8.

Defendant OMIG is an independent office within the New York State Department of Health which was established to prevent, detect, and investigate fraud and abuse within the New York State medical assistance program (Medicaid) and recover improperly expended Medicaid funds. Dkt. No. 88 ("Pl. 56.1") ¶ 1. OMIG's organizational structure consists of six divisions, including the Executive Office, the Division of Medicaid Audit, the Division of System Utilization and Review, the Division of Administration, the Division of Medicaid Investigations, and the Office of Counsel. The Office of Counsel supports each of the other OMIG divisions for both Medicaid and non-Medicaid legal matters. Id. ¶ 3. The staff within the Office of Counsel includes a General Counsel, Deputy Counsel, Associate Counsel, Associate Attorneys, Senior Attorneys, and administrative support staff. Id. ¶ 4.

Defendant Dennis Rosen ("Rosen") has served as the Medicaid Inspector General since March 2015. Id. ¶ 2. Defendant Janine Daniels-Rivera ("Daniels-Rivera" or "JDR"), who is a black woman, has been General Counsel of OMIG since 2009, and is responsible for management and supervision of the office. Id. ¶ 8; Dkt. No. 80 ("JDR Decl.") ¶ 2.¹

II. Plaintiff's Probationary Promotion to Senior Attorney

Drawing all reasonable inferences in favor of Plaintiff,² the evidence before the Court establishes the following:

Plaintiff was hired as a Senior Attorney at the Office of Counsel at OMIG's New York City office on or about July 2010. Pl. 56.1 ¶ 7. In August 2015, Plaintiff was promoted on a probationary basis to the role of Associate Attorney position, which is a supervisory position to the position of Senior Attorney. At the same time, another OMIG Senior Attorney, Barry Mandel ("Mandel"), who is a white man, was also promoted to the same position, also on a probationary basis. The promotions were made at the recommendation of Daniels-Rivera and were approved by Rosen. The promotions were subject to a probationary period of 12 to 52 weeks, which began on August 13, 2015. JDR Decl. ¶ 16; Id. Ex. E.

The two were selected ahead of candidates from outside OMIG who had equal or greater experience and scored higher on the Civil Service Exam. Pl. 56.1 ¶ 13. In completing OMIG's Nomination for Appointment or Promotion form recommending that Plaintiff be promoted to the Associate Attorney position, Daniels-Rivera noted that Plaintiff "does not have any experience supervising attorneys" and that "her interview was not superior to that of other candidates." JDR Decl., Ex. C. In addition, while every non-OMIG candidate scored 100 on the Civil Service Exam, Mandel scored a 90 and Plaintiff scored an 80. Pl. 56.1 ¶ 13. Nonetheless, Daniels-Rivera, in recommending Plaintiff's promotion, stated that:

Given her presence within the agency, and familiarity with the work of the office, the decision is being made to invest in our own. . . . the decision is based on the fact that it is believed that this individual has the potential to become an effective supervisor. Furthermore, she should be given the opportunity to be trained todetermine if she can develop the skills necessary to become an effective supervisor, and make the transition from colleague to supervisor, within the Office of Counsel.

JDR Decl., Ex. C.

The Associate Attorney worked "[u]nder direction of the General Counsel [of OMIG]"—Daniels-Rivera—and "report[ed] directly to the Deputy Counsel," JDR Decl., Ex. A, who at all relevant times was Harry Glick ("Glick"), Compl. ¶ 36. The responsibilities included, among other things, providing "supervisory review, support and training to Senior Attorneys in the Office of Counsel." Id. Plaintiff was assigned to supervise Tina Dolman ("Dolman") and Nancy Pak ("Pak"). Pl. 56.1 ¶ 18-19.³

As elaborated below, Plaintiff had difficulty adjusting to her job, received two unsatisfactory probation reports from Daniels-Rivera in July and September 2016, and was demoted back to the position of Senior Attorney in September 2016. Mandel remained an Associate Attorney.

III. Plaintiff's Allegations of Discriminatory Treatment by Robyn Henzel

Plaintiff's claims of discrimination originate from her interactions with Robyn Henzel ("Henzel") and Henzel's alleged conduct. From January 2015 to August 2016, Henzel was a Senior Attorney in the Office of Counsel for OMIG, the position Plaintiff had held before her probationary promotion and which was subordinate to Associate Attorney. Dkt. No. 100 "Def's counter-56.1" ¶ 61.

From Milord-Francois' deposition testimony, which the Court accepts as true on the motion for summary judgment, she and Henzel had a tense, unfriendly relationship. Plaintiff was not the only person to have a difficult time with Henzel, whom several OMIG attorneysreported to be difficult to work with and to be around and to have acted in a discriminatory or hostile manner. Def's counter-56.1 ¶¶ 62-64.

Plaintiff testified to several incidents. A "couple of months" into Henzel's employment, Plaintiff entered Henzel's office after she heard "shouting" during a witness preparation and concluded that the preparation was not going well. Plaintiff offered to help Henzel and told the witness that Henzel was new. The intrusion resulted in a complaint, as Glick reported to Plaintiff that Henzel had complained that Plaintiff was bullying her and undermining her witness preparation. Plaintiff apologized. See Dkt. No. 95-1 ("Pl. Tr.") at 36:3-37:17, 42:8-14. In March 2016, Henzel complained to Daniels-Rivera that Dolman (then Plaintiff's supervisee) had made what Henzel considered to be an anti-Semitic comment about her, stating during a witness preparation that she (Dolman) was going to pray for Henzel. Daniels-Rivera asked Plaintiff to address the issue. She did so by telling Dolman that she should speak to Glick rather than by talking to Henzel herself because she believed that Henzel had "a tendency to lie." Id. at 37:21-41:23.

There were tensions over Plaintiff's promotion. After Plaintiff was promoted, Henzel complained to Plaintiff that she (Henzel) had performed better on the civil service exam than Plaintiff but that Plaintiff was promoted instead. Id. at 45: 8-45:23. Henzel also complained to Plaintiff that although Plaintiff spoke "well," she (Henzel) should have been promoted instead. Id. at 51:6-10.

Plaintiffs also testified to several incidents where she believed Henzel made comments that took on racial overtones. In June 2015, five months into Henzel's employment and prior to Plaintiff's probationary promotion, Henzel and Plaintiff were in a discussion with several coworkers. In Plaintiff's presence, Henzel stated that she was attending a funeral in Harlem forthe father of a former colleague and that if she did not return, it was because something had happened to her and "they" had killed her. Id. at 211:6-212:3. A white paralegal who was part of the conversation responded that he lived in Harlem. Henzel responded: "[W]ell, you live in Harlem, like you live in Harlem, you live by them." Id. Plaintiff understood the remark to be a reference to the majority Black residents of Harlem. See id.

The following month, during the ticker tape parade in New York honoring the United States women soccer team's victory in the World Cup, and while a group of employees were watching outside of the office, Henzel walked up to Plaintiff and "out of the blue, sa[id], oh my God, your black face, your black face scares me" and said "like you're scary, you['re] angry, your angry black face." Two coworkers were nearby. Id. at 43:20-44:19. Of those, one remembered the remark but remembered both the location where the comment was made and its content slightly differently. Dolman remembered Henzel standing outside Plaintiff's office and stated "'now I know why you're such an angry black woman and you have such a bad attitude.'" Dkt. No. 95-19 ("Dolman Tr.") at 72:6-23. She testified further that "[a]fter that incident I had to go for a walk with [Plaintiff] because she was so upset that she needed to cool down." Id. 73:10-11.

There were other instances of hostility. Henzel "implied" that Plaintiff had a drug issue; on one occasion when Plaintiff entered a co-worker's office to get an aspirin, Henzel approached her and asked, ...