Ortiz-Moss v. New York City Dept. of Transp., 05 Civ. 4206(THK).

623 F.Supp.2d 379

Sylvia ORTIZ-MOSS, Plaintiff, v. NEW YORK CITY DEPARTMENT OF TRANSPORTATION, Victor Rosen, and Vincent Susi, Defendants.

No. 05 Civ. 4206(THK).

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

April 18, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gregory Scolieri, Thomas Anthony Ricotta, Leeds Morelli & Brown, P.C., Carle Place, NY, for Plaintiff.

Alan Maer Schlesinger, Corporation Counsel Office, City of New York, New York City, Rippi Gill, NYC Law Department, Brooklyn, NY, for Defendants.

AMENDED MEMORANDUM OPINION AND ORDER

[THIS OPINION AMENDS AND SUPERCEDES THE COURT'S PRIOR OPINION, DATED APRIL 7, 2008, WHICH IS HEREBY WITHDRAWN]

THEODORE H. KATZ, United States Magistrate Judge.

Plaintiff Sylvia Ortiz-Moss brings this action against the New York City Department of Transportation ("DOT"), and her former supervisors, Victor Rosen and Vincent Susi, alleging gender discrimination and unlawful retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1983, the New York State Human Rights Law, and the New York City Human Rights Law. The parties have completed pretrial discovery and have consented to trial before this Court, pursuant to 28 U.S.C. § 636(c). Presently before the Court is Defendants' motion for summary judgment. For the reasons that follow, the motion is granted.

FACTUAL BACKGROUND

Except where otherwise noted, the following facts, derived from the parties' Statements pursuant Local Civil Rule 56.1, are undisputed.

The Bureau of Parking, a division of DOT, contains various units, including the Parking Control Unit ("PCU"), which is responsible for writing parking tickets. There are approximately 75-80 employees in the PCU, primarily in two civil service titles: Parking Control Specialist ("PCS") and Associate Parking Control Specialist, Levels I and II ("Associate PCS"). Individuals holding the PCS title are known primarily by the "in-house" title of "officers." Those holding the Associate PCS civil service title serve in the "inhouse" titles of Captain, Associate Chief, Deputy Chief, and Chief. In-house titles have no civil service meaning and are merely given to positions for organizational purposes. In the PCU there are 2-3 Chiefs and Assistant Chiefs, 15-20 Captains, and the remaining employees are officers and clerical staff.

Defendant Rosen is the Assistant Commissioner of the Bureau of Parking, and he has six directors serving directly under him, one of whom is Defendant Susi. Of the other five directors, three are female and two are male. Rosen promoted all of the directors to their title.

Plaintiff was employed in the DOT PCU from 1992 until 2006, when the PCU was transferred from DOT to the New York City Police Department ("NYPD"). Plaintiff commenced employment with the PCU as a principal administrative assistant, where she performed administrative services. In that same year she received a provisional appointment to the civil service title of Staff Analyst. In 1995, she became Deputy Chief for Administration in the PCU, but her civil service title remained Staff Analyst. In 1997, Plaintiff became Deputy Chief of Operations in the PCU, and her civil service title remained unchanged.

In 1998, Plaintiff came under the direct supervision of Defendant Rosen. In April of 1998, Rosen assigned Plaintiff to the position of Chief, PCU, but her civil service title remained Staff Analyst, and her salary remained the same.¹ From 1998-2000, while under Rosen's direct supervision, Rosen believed that Plaintiff performed her administrative duties well, but that she performed her operational duties only satisfactorily. (See Deposition of Victor Rosen, dated Dec. 12, 2006 ("Rosen Dep."), at 11.) Rosen rated Plaintiff either "above average" or "outstanding." (See id.)

Local 237 of the International Brotherhood of Teamsters ("L. 237") represents, in collective bargaining, employees in the titles of PCS and Associate PCS, the officers and their supervisors in the PCU. In November, 2001, L. 237 wrote a letter to Rosen complaining that Plaintiff filed an excessive number of disciplinary charges targeting particular employees, and was routinely rude and displayed disrespect for staff members. (See Exhibit ("Ex.") F to Declaration of Alan M. Schlesinger, dated Sept. 28, 2007 ("Schlesinger Decl.").)

Nevertheless, in January, 2002, after Plaintiff took the required civil service test, Rosen promoted Plaintiff from the civil service title of Staff Analyst to the title of Associate Staff Analyst. (See Pl.'s Dep. at 46-47.)

In March, 2002, Defendant Susi, one of the six directors under Rosen, assumed oversight of the PCU. On March 14, 2002, Plaintiff transmitted to Rosen complaints received from supervisors in the PCU claiming that L. 237, which represented supervisors as well as officers, was not adequately protecting their interests due to an alleged conflict of interest. Rosen thought the complaints were very serious and he advised Plaintiff that he forwarded the complaints to DOT's human resources and labor relations officers.

On April 1, 2002, Susi reorganized the PCU, eliminating the Chief, PCU position. Plaintiff was reassigned from the in-house Chief, PCU to the in-house title of Chief of Administration, PCU. Plaintiff's civil service title remained Associate Staff Analyst, and her salary was unchanged. The in-house title of Chief of Operations was filled by David Griffith. The Chief of Administration and Chief of Operations were co-equals. Nevertheless, Plaintiff contends that she was demoted in title and rank.² Nobody served as Chief, PCU until October, 2002.

Plaintiff claims that the reorganization and her reassignment resulted from the complaints about the union's conflict of interest that she received from staff and forwarded to Rosen in March, 2002. According to Susi, when he assumed supervision of the PCU, he observed problems, including low morale and diminished productivity. He met with officers and captains, as well as union representatives, and found the employees to be "very disgruntled." (Susi Dep. at 18.) They were dissatisfied with the manner in which Plaintiff treated them, felt that they were over-disciplined, and, in their view, Plaintiff spoke to them in a derogatory fashion. (See id.) Susi decided to separate the administrative and operations functions, and appointed Plaintiff Chief of Administration because he felt that was where Plaintiff's analytical and report-writing strengths would be best utilized. According to Susi, morale and performance in the PCU improved after the April, 2002 reorganization.³

Plaintiff contends that, as a result of her reassignment, she lost the opportunity to put in as much overtime as she had in her prior position, thus reducing her overall compensation. According to Defendants, Plaintiff was not denied overtime opportunities; instead, her new job had less demanding duties and did not require overtime. Plaintiff was also relocated to an office, in the training room, which she contends was rat and bug infested and which served as a storage area. When pressed, Plaintiff acknowledged that while she was in the office, she saw insects two or three times. Shortly after complaining about the office, within two or three weeks, Plaintiff was moved to another office.

In October, 2002, Domingo Bones ("Bones") became the Chief, PCU. In the Fall of 2002, Plaintiff became Chief of Training for PCU, a position she held until September, 2006, when the PCU was functionally transferred to the NYPD. She reported to Bones, who, in turn, reported to Susi, and Susi reported to Rosen. As the Chief of Training, Plaintiff's civil service title, salary, and benefits remained the same. Plaintiff contends, however, that she was demoted in favor of a less qualified male—Bones—who became her supervisor.

As Chief of Training, Plaintiff was responsible for training new employees in the PCU. Trainees completed training feedback forms which rated Plaintiff negatively, complained that the training was disorganized, and that Plaintiff talked down and was rude to new employees.

In October 2003, Plaintiff found a pornographic picture on a computer printer which Plaintiff shared with other staff members. As Plaintiff was viewing the picture, Captain Robert Humes, who sent the picture to the printer, took it out of Plaintiff's hands. (See Pl.'s Dep., at 106-07, 113.) The printer was in the office shared by Assistant Chief Hortense Mangaroo and some captains. Plaintiff told Bones that she wanted her own printer because she refused to share a printer to which pornographic material was being sent. She also complained to all of the chiefs, assistant chiefs, and a few captains, about the picture, (see id. at 107-08), but she did not report the picture to DOT's Office of Equal Employment Opportunity ("OEEO"). This is the only pornographic picture Plaintiff saw in DOT's offices.⁴

The picture was reported anonymously to OEEO and a two-month investigation was undertaken. The investigation resulted Bones's removal from the position of Chief, PCU. He was demoted in civil service title for one year, resulting in a diminution of his salary, and was placed on disciplinary probation. He was not permitted to return to the PCU, and was transferred to another part of the Bureau of Parking. Eleven other staff members were also disciplined and a reorganization of the PCU followed.

In late January, 2004, Plaintiff requested that Captain Michael Nurse and Assistant Chief Vasquez assist her in the training functions. Her request was approved. At the same time, Plaintiff expressed the view that, while she did not disagree with the reorganization of the department, she felt that she had been unjustifiedly removed from the position of Chief, PCU and that for her own sake and that of the unit she thought she should be...