Spinelli v. City of N.Y.

MARIANNE SPINELLI, Plaintiff, v. CITY OF NEW YORK, LAW DEPT., et al., Defendants.

13-CV-07112 (GBD)(SN)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 30, 2016

REPORT AND RECOMMENDATION

SARAH NETBURN, United States Magistrate Judge.

TO THE HONORABLE GEORGE B. DANIELS:

Pro se plaintiff Marianne Spinelli worked as a paralegal in the New York City Law Department. In her amended complaint, she claimed that the Law Department and her supervisors Jenny Montana O'Connor and John Orcutt violated her rights under the Age Discrimination in Employment Act of 1967 ("ADEA"), the New York State Human Rights Law ("NYSHRL"), and the Family Medical Leave Act ("FMLA").

According to Spinelli, the defendants effectively demoted her from paralegal to a clerical position when they made her a full-time receptionist. She argued that the demotion was caused by age-based animus and was made in retaliation for her exercise of FMLA benefits. She asserted age discrimination and hostile work environment claims against the Law Department and Montana O'Connor, and FMLA interference and retaliation against the Law Department and Orcutt.

The defendants argue that the undisputed facts entitle them to summary judgment on all claims. According to the defendants, Spinelli's discrimination and hostile workplace claims hang by a slender thread—two arguably discriminatory remarks made by her supervisor Montana O'Connor. In their view, the record shows that Spinelli was given tasks commensurate with her abilities and that she suffered no adverse employment action caused by age discrimination. They also contend that Spinelli's ADEA claims are time-barred and her FMLA claims are meritless.

The Court should enter summary judgment on Spinelli's ADEA claims because they are time-barred. Her FMLA claims are meritless because she cannot prove that the defendants withheld any FMLA benefits or retaliated against her for exercising them. She also cannot prove any hostile work environment claim, and the defendants should be granted summary judgment on those claims. The Court should deny summary judgment on Spinelli's NYSHRL age discrimination claims because disputes remain regarding whether the diminution of Spinelli's duties constituted an adverse employment action and whether the defendants' proffered reason for taking that action is credible.

BACKGROUND

I. Spinelli's Rule 56.1 Statement

As a preliminary matter, the defendants argue that their Rule 56.1 Statement should be adopted in its entirety because Spinelli failed to follow fastidiously Rule 56.1's requirements. Because Spinelli appears pro se, the Court will review her submissions liberally and conduct an independent investigation of the record to determine whether it supports her claims.

Local Rule 56.1 requires a party moving for summary judgment to submit a "short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Rule 56.1(a). The opposing party must submit "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate,short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried." Local Rule 56.1(b). Facts in the moving party's Rule 56.1 statement that were not contested "by a correspondingly number paragraph" in the opposing party's statement are deemed to be admitted. Local Rule 56.1(c). Each statement of fact "must be followed by citation to evidence which would be admissible" at trial. Local Rule 56.1(d). "The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001). Local Rule 56.1 does not, however, "absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record." Id. Even an uncontroverted Rule 56.1 statement cannot establish a fact for the purposes of summary judgment if it is not supported by admissible evidence. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003).

Spinelli submitted an incomplete response to the defendants' Rule 56.1 statement. She responded selectively to the defendants' numbered factual assertions and, in some cases, did not rely on admissible evidence for her counter-assertions. Were Spinelli a counseled litigant, the Court may very well be justified in deeming the bulk of the defendants' properly supported factual assertions to be admitted. See, e.g., Suares v. Cityscape Tours, Inc., 11-cv-5650 (AJN), 2014 WL 969661, at *2 (S.D.N.Y. Mar. 12, 2014); Emanuel v. Griffin, 13-cv-1806 (JMF), 2015 WL 1379007, at *1-2 (S.D.N.Y. Mar. 25, 2015). But Spinelli appears pro se, and the Court must read her papers "liberally," construing them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Accordingly, the Court will use itsdiscretion "to conduct an assiduous review of the record" to determine whether Spinelli's assertions have record support. Holtz, 258 F.3d at 73 (internal quotation marks omitted).

II. Factual Background

The following facts are taken from the Court's review of the summary judgment record.

Spinelli's Initial Appointment as an MBU Paralegal

In December 2008, the Law Department hired Plaintiff Marianne Spinelli as a paralegal in the Manhattan Borough Unit ("MBU"). Then 68 years old, Spinelli was the oldest paralegal in her unit by at least 10 years. See ECF No. 193-2 at 10.

The position required applicants to pass a civil service exam. Under the New York State Civil Service Law, appointment to a civil service position "shall be made by the selection of one of the three" highest scorers on the exam. N.Y. Civ. Serv. Law § 61(1). This is known as the one-in-three rule. Earlier that year, Spinelli passed the exam and was one of the top three scorers to apply for her position.

Spinelli's other qualifications included prior paralegal experience, a paralegal certificate, and a bachelor's degree. A May 2007 letter from Spinelli's prior employer states that she was "conscientious, dependable, works hard" and requires "minimal supervision." ECF No. 193-4 at 4. The letter also describes Spinelli as "organized, and effective in maintaining large case files and doing the necessary research." Id. And because of her "diligence and willingness to go 'above and beyond,'" she "developed good working relationships with counsel and the regulatory agencies." Id.

Spinelli interviewed with Defendant John Orcutt, then MBU's Assistant Borough Chief. Orcutt recommended Spinelli's appointment to Defendant Jenny Montana O'Connor, then MBU's Borough Chief, who gave Spinelli the job. Her job responsibilities included requestingdocuments and medical files, processing authorizations, sending correspondence, and entering litigation data into MBU's case management system and document automation software.

MBU Performance Evaluations

In a declaration prepared for this litigation, Montana O'Connor claimed Spinelli "performed unsatisfactorily during the majority of her employment in MBU prior to her September 2010 resignation." ECF No. 142-1 at 7. She "lacked a working knowledge of the City's client agencies, their structure, and available resources" and "struggled to keep abreast of her assignments." Id. According to Montana O'Connor, Spinelli received an "Unsatisfactory" rating on a May 2009 evaluation. Id. But the record includes no contemporaneous documentation of this review or of any admonishments, reprimands, or disciplinary action from this period.

The record does include what appear to be four performance evaluations rating Spinelli's performance as "good" or "outstanding." One evaluation described Spinelli as a "refreshing addition" who had "a superlative work ethic" and "a genuine commitment to performing at her best." ECF No. 193-4 at 12. It stated that Spinelli worked closely with her supervisor to improve her work quality and time management and recommended continued improvement in those areas. Id. It concluded by encouraging Spinelli's supervisors to "assign her more complex and high-exposure matters to further enhance her professional development." Id.

A September 2009 evaluation gave Spinelli an overall "good" rating. ECF No. 193-5 at 1. But although the review noted that Spinelli had shown "improvement in her overall performance and work product," it suggested that she continue to "devote additional effort towards tracking her cases" and "also become more diligent with regard to maintenance and placement of files." Id. at 1-2. One undocumented sick leave and 16 latenesses occurred during the evaluation period.Id. at 2. Accordingly, Spinelli was to "devote additional effort toward reducing her number of accrued latenesses." Id.

In December 2009, Spinelli was told that all eligible employees' probations were being extended. In her deposition, Spinelli testified that she was told that if she did not sign the extension immediately upon receipt, she would be fired. ECF No. 142-1 at 71. Spinelli also recalled that the director of Human Resources screamed at her "so harshly" that she "went to the bathroom" and "threw up." Id. at 71. Spinelli asked to meet with Montana O'Connor and her supervisor Michael Chadirjian. ECF No. 193-4 at 10. Montana O'Connor wrote that she stood by her performance evaluation. Id.

Months later, Spinelli received an "outstanding" review that lauded her for her improvement and stated that she had "flourished" since her last evaluation. ECF No. 193-5 at 8. It called her "an integral member of the intake litigation...