Exhibit A

Case 1:07-cv-03583-LBS-RLE Document 25-2 Filed 04/28/2008 Page 1 of 10
LEXSEE 

AQUILA KNIGHT, Plaintiff, - against - NEW YORK CITY HOUSING 

AUTHORITY, Defendant. 

03 Civ. 2746 (DAB) 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF 

NEW YORK 

2007 U.S. Dist. LEXIS 9148 

January 31, 2007, Decided 

February 2, 2007, Filed 

CORE TERMS: summary judgment, hiring, employment application, genuine, hire, prima facie case, sex, 

processing, borough, motive, issues of material fact, discriminatory, partial, staff, mixed, employment discrimination, community center, recommendation, impermissible, housing, email, Pl Mem of Law, employment decision, citations omitted, moving party, decision maker, 

reasonable cause, controvert, opposing, delayed 

COUNSEL: [*1] For Aquila Knight, Plaintiff: Jeffrey 

C. Slade, LEAD ATTORNEY, Slade & Associates, P.C., 

New York, NY; Chinyere Y Okoronkwo, Law Firm of 

Chinyere Okoronkwo, Esq, New York, NY. 

For New York City Housing Authority, Defendant: Jeffrey Niederhoffer, LEAD ATTORNEY, Jeffrey Schanback, General Counsel, New York, NY; Jeffrey Marc 

Niederhoffer, LEAD ATTORNEY, New York City 

Housing Authority Law Department, New York, NY. 

JUDGES: Deborah A. Batts, United States District 

Judge. 

OPINION BY: Deborah A. Batts 

OPINION 

MEMORANDUM & ORDER 

DEBORAH A. BATTS, United States District 

Judge. 

Aquila Knight ("Plaintiff") brings this action for 

back pay and related benefits pursuant to Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the 

New York State Human Rights Law, Executive Law § 

296 and New York City Administrative Code § 8-502. 

Plaintiff alleges that the New York City Housing Authority ("Defendant") unlawfully discriminated against her 

on the basis of her sex. She specifically alleges that Defendant offered her employment as a "Community Coordinator" at the Butler Community Center ("Butler"), located in the Bronx, on May 10, 2001. Defendant, however, [*2] allegedly deliberately delayed completing the 

processing of her employment application for eighteen 

months because she is a woman. Plaintiff became aware 

of the alleged sex-based animus behind the delay in 

completing her employment application when one of 

Defendant's employees involved in the hiring process 

allegedly told her in June, 2001 that a man was needed to 

fill the Community Coordinator position at Butler. 

Defendant moves for summary judgment and Plaintiff cross-moves for partial summary judgment pursuant 

to Rule 56 of the Federal Rules of Civil Procedure. For 

the reasons set forth, Defendant's Motion for Summary 

Judgment is GRANTED with respect to each of the 

Plaintiff's claims and Plaintiff's Cross-motion for Partial 

Summary Judgment is DENIED. 

I. BACKGROUND 

In response to Defendant's Motion for Summary 

Judgment, Plaintiff submitted her Statement of Facts 

pursuant to Local Civil Rule 56.1 ("Statement of Facts"). 

With few exceptions, Plaintiff's Statement of Facts fails 

to comply with the requirements of Local Civil Rule 

56.1. 1 Most of Plaintiff's responses to the paragraphs in 

Defendant's Statement of Facts either do not controvert 

[*3] the statements made by the Defendant or they state 

that Plaintiff lacks the knowledge to admit or deny the 

truth of Defendant's statements. Additionally where 

Plaintiff's responses do not directly controvert Defendant's statements, Plaintiff nevertheless attempts to rebut 

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Defendant's statements by offering either non-responsive 

statements or responsive statements that are unsupported 

by citations to the record. Pursuant to Local Civil Rule 

56.1 Defendant's statements are deemed to be admitted 

where Plaintiff has failed to specifically controvert them 

with citations to the record. 

1 Local Civil Rule 56.1 provides that a party 

opposing summary judgment must submit a 

statement of facts that "shall include a correspondingly numbered paragraph responding to 

each numbered paragraph in the statement of the 

moving party." The rule further provides that 

"[e]ach numbered paragraph in the statement of 

material facts set forth in the statement required 

to be served by the moving party will be deemed 

to be admitted for purposes of the motion unless 

specifically controverted by a correspondingly 

numbered paragraph in the statement required to 

be served by the opposing party." Local Civil 

Rule 56.1(b) - (c). Each statement made by the 

opposing party in the statement of facts must be 

followed by a citation to evidence which would 

be admissible. Local Civil Rule 56.1(d). 

 [*4] Defendant is a public corporation formed pursuant to the New York State Public Housing Law for the 

purpose of furnishing housing to low-income residents in 

New York City. (Def. Local Rule 56.1 Stmt. P 1.) The 

Department of Community Operations ("DCO") is one of 

several departments within the Defendant's organization, 

providing cultural, educational and recreational services 

to residents living in housing developments managed by 

the Defendant. (Id. P 2.) Within each of New York City's 

five boroughs, Defendant maintains a borough office 

headed by a Director and a Deputy Director. (Id.) 

Plaintiff states that in 1999 she submitted an application to Defendant for a "Community Coordinator" position. (Pl. Local Rule 56.1 Stmt. P 8.) Defendant claims 

that no "Community Coordinator" positions were available at the time of the application and that Plaintiff had 

turned down a "Director" position because she wanted to 

be a Coordinator. (Def. Reply Local Rule 56.1 Stmt. P 8; 

Pl. Compl. P 9.) 

On August 23, 2000, Ernesto Lozano, Director of 

the Bronx borough office, sent a memo to his superior, 

Kevin Kearney, the Senior Director of DCO, requesting 

that Plaintiff be hired for the Community [*5] Coordinator position at Butler, a housing development managed 

by Defendant. (Aff. of Okoronkwo at Ex. 4.) In March of 

2001, the DCO was engaged in a reorganization involving the transferring of staff from the Bronx borough office to positions in the field. (Def. Local Rule 56.1 Stmt. 

P 5.) During the reorganization Lozano met with staff 

members to determine their preferences for transfer. Following these discussions, Lozano sent an email to his 

supervisor stating in part that staff member Israel Rivera 

could be considered for potential reassignment to Butler. 

(Id.; Aff. of Okoronkwo at Ex. 20.) 

On March 22, 2001, after these preferences were revealed, the Deputy General Manager for Community 

Operations Hugh Spence requested that the Director of 

Human Resources Madelyn Oliva process the transfers, 

including the transfer of Rivera to Butler. (Def. Local 

Rule 56.1 Stmt. P 6.) Spence was wholly unaware of 

Plaintiff's interest in being employed as Community Coordinator at Butler at the time of his request. (Spence 

Decl. P 6.) 

Rivera was sent to Butler to fill the position of 

"Community Coordinator," but his functional role was to 

serve as a community center support staff member with 

[*6] the job duties of overseeing work required to make 

the center operational and to maintain compliance with 

New York City health regulations. Rivera's duties included activities such as clearing debris, fixing holes in 

walls and installing appliances and telephone lines. (Def. 

Local Rule 56.1 Stmt. P 7; Pl. Local Rule 56.1 Stmt. P 

7.) 

The Parties, however, disagree as to the precise 

scope of Rivera's responsibilities. Plaintiff offers the testimony of Gary Coleman, President of the Butler Houses 

Residents Association, who claims to have observed 

Rivera supervising staff persons and claims to have observed that Rivera had referred to himself as "Director" 

of Butler. (Aff. of Okoronkwo at Ex. 23.) Rivera himself 

states that he went unsupervised for about a month, but 

that he was supervised thereafter and that he was sent to 

Butler to facilitate repairs. He denies that he had staff 

persons reporting to him during his time at Butler. (Id. at 

Ex. 27.) Prior to his transfer to Butler, Rivera had held 

the title of Community Coordinator since 1998. (Id. at 

Ex. 27, Rivera Aff. of Changes.) In December 2001, 

Rivera was re-transferred from Butler to Soundview Senior Center. (Rivera Decl. [*7] P 2.) 

Around late March 2001, Plaintiff was interviewed 

by Ilia Figueroa, the Deputy Director of the Bronx borough office for the position of Director of Butler Houses 

Community Center which had the underlying civil service title of "Community Coordinator." (Def. Local Rule 

56.1 Stmt. P 8.) Defendant alleges that no other candidates were interviewed or considered for the Community 

Coordinator position at Butler subsequent to Plaintiff's 

interview. (Id. P 17.) Figueroa prepared a request to hire 

Plaintiff which she submitted to Lozano and then to 

Kearney for review and approval shortly after the interview. (Id.) 

A letter dated May 10, 2001 was sent to Plaintiff 

stating: "Congratulations, You have been selected for a 

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position as a Community Coordinator at Butler Community Center." (Aff. of Okoronkwo at Ex. 5.) Plaintiff alleges, however, that on or about June 25, 2001, Figueroa 

told her during a telephone conversation that a man was 

placed at Butler because Defendants needed someone 

there with strength. (Pl. Local Rule 56.1 Stmt. P 8(f); 

Aff. of Okoronkwo at Ex. 30.) No other evidence in the 

record aside from Plaintiff's testimony regarding this 

alleged statement is offered [*8] to support the claim 

that the processing of Plaintiff's employment application 

was delayed because of her sex. Figueroa denies having 

made any such statement. (Decl. of Figueroa P 12.) Even 

after Figueroa's alleged statement Defendant continued 

to process Plaintiff's application for the Community Coordinator position at Butler. 

In August 2001, Defendant discovered that when 

Rivera was transferred to Butler from the Bronx borough 

office in March 2001, the budgetary "line" formerly occupied by Rivera at the borough office, Line 37895, did 

not transfer to the Butler facility. As a result, Rivera occupied the only Community Coordinator budget line at 

Butler, Line 42068. (Def. Local Rule 56.1 Stmt. PP 12-

13.) Since there was thus no funding available for Plaintiff to fill a position at Butler, Kearney was required to 

approve the use of another line, Line 37805, for use at 

Butler so that Plaintiff's hiring could proceed. (Id. P15.) 

In October 2001, Kearney approved the request, submitted by Lozano and prepared by Figueroa, to hire Plaintiff 

as a Community Coordinator at Butler and approved the 

use of budget line number 37805 to effectuate the hiring. 

(Id. P 16.) After the request [*9] to hire Plaintiff had 

been approved by Kearney, it was submitted to Defendant's Human Resources Department in November 2001. 

(Id. P 18.) 

The parties dispute the source of sole hiring authority within Defendant's organization. Defendant alleges 

that the Human Resources department has sole authority 

to hire individuals for employment and that other departments within the Defendant's organization must 

submit requests to the Human Resources department to 

hire staff. (Id. P 19.) Plaintiff has not offered evidence to 

controvert this allegation. Defendant offers the declaration of Oliva in support of its claim that the Human Resources department has sole hiring authority. 

The processing of employment applications clearly 

takes place within the Human Resources department. 

Within the Human Resources department, Donna Williams, a Placement Coordinator, undertook primary responsibility for processing the request to hire Plaintiff. 

(Id. P 20.) In March and April of 2002, Williams met 

with Plaintiff on two different occasions in the course of 

completing the processing of Plaintiff's employment application. (Id.) Subsequent to the second meeting Williams forwarded Plaintiff's employment [*10] application for verification; partial verification of the application 

was completed by the end of May 2002. (Id. PP 21 & 

23.) 

While Plaintiff's application was being processed, 

Plaintiff timely filed a claim of discrimination with the 

United States Equal Employment Opportunity Commission ("EEOC") on April 18, 2002. (Id. P 22.) In August 

2002, the EEOC issued a probable cause determination 

that Defendant had unreasonably delayed the processing 

of Plaintiff's application on the basis of her sex. (Aff. of 

Okoronkwo at Exs. 18 & 19.) Plaintiff received a right to 

sue letter in January 2003. (Decl. of Niederhoffer at Ex. 

B.) 

By the end of May 2002, Deidra Gilliard had replaced Lozano as Director of the Bronx borough office. 

(Pl. Local Rule 56.1 Stmt. P 24(c).) Gilliard had stated 

that upon starting her employment with Defendant that 

she decided to not proceed automatically with the hiring 

recommendations made by her predecessor, Lozano, 

including his recommendation to hire Plaintiff. (Decl. of 

Deidra Gilliard P 2.) Plaintiff alleges that Gilliard decided "to post William Rivera's position" by email and to 

"not hire" Plaintiff, despite her understanding that Plaintiff would likely [*11] sue Defendant. (Id.; Aff. of 

Okoronkwo at Ex. 12.) Defendant replies that the email 

sent by Gilliard refers to an individual named "William 

Rivera," who is not the same person as "Israel Rivera" 

and that the position held by William Rivera which 

Gilliard posted was entirely different from that held by 

Israel Rivera. (Def. Reply Local Rule 56.1 Stmt. P 24(c); 

Aff. of Okoronkwo at Ex. 12.) 

On May 31, 2002, Defendant sent Plaintiff a letter 

rejecting her job application. (Pl. Local Rule 56.1 Stmt. P 

24(d).) On June 5, 2002, Gilliard reversed course and 

requested that the Human Resources department proceed 

with the processing of Plaintiff's application. (Id. P 25.) 

In the early part of June 2002, Williams had forwarded 

Plaintiff's employment application materials to Donay 

Queenan, Deputy Director of Human Resources and to 

Oliva. (Def. Local Rule 56.1 Stmt. P24.) On June 5, 

2002, Queenan and Oliva approved Plaintiff's employment application. (Id. P 25.) On June 19, 2002, Williams 

notified Plaintiff that her employment was approved by 

the Human Resources department and asked her when 

she would be able to start. (Id. P 27.) 

During 2001, Plaintiff had worked at Eagle Group 

[*12] Family Daycare, but was forced to cease that employment in December of 2001 because of problems with 

her knee. (Id. P 9.) At the time that Williams contacted 

Plaintiff in June 2002 to determine a start date, Defendant claims that Plaintiff advised that she would not be 

able to commence work because of continuing problems 

with her knee. (Id. PP 28-29.) Plaintiff claims, however, 

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that despite her knee condition, she could have performed the Community Coordinator job, because the 

majority of the job involves "paperwork and programming." (Knight Dep. at 44-45.) Plaintiff ultimately began 

work at Butler in the position of Director of Butler 

Houses Community Center on September 9, 2002. (Def. 

Local Rule 56.1 Stmt. P 30.) 

Defendant notes that during the period between 

January 1, 2001 and September 9, 2002, it hired thirty 

one individuals as "Community Coordinators", fifteen of 

whom were women. (Id. P 31.) Defendant also notes that 

over the same period of time it promoted fifty six individuals to Community Coordinator positions; women 

filled thirty seven of those positions. (Id.) 

II. DISCUSSION 

Defendant moves for summary judgment, arguing 

specifically that Plaintiff has [*13] not established a 

prima facie case of discrimination and that even if a 

prima facie case has been established, that Plaintiff cannot show that Defendant's proffered reasons for its actions were pretextual. (Def. Mem. of Law at 1.) Furthermore, Defendant argues that the alternative approach to 

establishing a claim under Title VII, the mixed-motive 

theory, has not been established by the Plaintiff. (Def. 

Mem. of Law in Further Support at 2.) Plaintiff argues 

that numerous genuine issues of material fact exist which 

should preclude the granting of Defendants' Motion for 

Summary Judgment. (Pl. Mem. of Law in Opposition at 

10.) Plaintiff has also filed a Cross-motion for Partial 

Summary Judgment seeking to estop Defendant from 

disavowing statements and representations made by it in 

two documents submitted to the EEOC pursuant to 28 

U.S.C. § 1746. (Pl. Mem of Law in Support at 1.) 

A. The Summary Judgment Standard 

The Court's role on a motion for summary judgment 

is not to resolve disputed issues of fact but to determine 

whether there are any genuine issues for trial. Summary 

judgment may be granted only when there are no genuine 

issues of material fact requiring [*14] a trial and the 

moving party is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(c); see also Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. 

Ed. 2d 202 (1986); Corselli v. Coughlin, 842 F.2d 23, 25 

(2d Cir. 1988). Under Fed. R. Civ. P. 56(c) "[t]he judgment sought shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, and admissions 

on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that 

the moving party is entitled to a judgment as a matter of 

law." The Supreme Court has held that Rule 56(c) "mandates the entry of summary judgment, after adequate 

time for discovery and upon motion, against a party who 

fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on 

which that party will bear the burden of proof at trial." 

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 

2548, 91 L. Ed. 2d 265 (1986). 

As a general rule "the court is to draw all factual inferences in favor of the party against whom summary 

judgment is sought, viewing [*15] the factual assertions 

. . . in the light most favorable to the party opposing the 

motion." Rodriguez v. City of New York, 72 F.3d 1051, 

1061 (2d Cir. 1995); see also Consarc Corp. v. Marine 

Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993). 

As is often stated "[v]iewing the evidence produced in 

the light most favorable to the nonmovant, if a rational 

trier could not find for the nonmovant, then there is no 

genuine issue of material fact and entry of summary 

judgment is appropriate." Binder v. Long Island Lighting 

Co., 933 F.2d 187, 191 (2d Cir. 1991). An issue of fact is 

"material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. 

Whether summary judgment is appropriate in a discrimination case depends upon "the strength of the plaintiff's prima facie case, the probative value of the proof 

that the employer's explanation is false, and any other 

evidence that supports the employer's case and that properly may be considered." 2 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148-49, 120 S. Ct. 

2097, 147 L. Ed. 2d 105 (2000); see also Schnabel v. 

Abramson, 232 F.3d 83, 90 (2d Cir. 2000) [*16] (holding that "Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his 'ultimate 

burden of persuading the trier of fact that the defendant 

intentionally discriminated against the plaintiff'"). However, where a plaintiff establishes a prima facie case and 

presents some evidence of pretext, summary judgment 

may still be appropriate where, for instance, the record 

conclusively reveals a nondiscriminatory reason for the 

employer's action, or where the plaintiff creates "only a 

weak issue of fact" on the issue of pretext and there exists "abundant and uncontroverted independent evidence 

that no discrimination [has] occurred." Schnabel, 232 

F.3d at 90 (quoting Reeves, 530 U.S. at 148) (internal 

quotations omitted). 

2 Reeves was decided under Fed. R. Civ. P. 50

(not Rule 56 as in the instant case), however "the 

inquiry under each is the same." Reeves, 530 U.S. 

at 150. 

 [*17] The question on a summary judgment motion 

in a discrimination case is "whether the evidence, taken 

as a whole, supports a sufficient rational inference of 

discrimination. To get to the jury, it is not enough . . . to 

disbelieve the employer; the fact finder must [also] beCase 1:07-cv-03583-LBS-RLE Document 25-2 Filed 04/28/2008 Page 5 of 10
2007 U.S. Dist. LEXIS 9148, * 

Page 5 

lieve the plaintiff's explanation of intentional discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d 

Cir. 2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 

U.S. 502, 519, 113 S. Ct. 2742, 125 L. Ed. 2d 407 

(1993)). 

B. Sex Discrimination Under Title VII 

Title VII of the Civil Rights Act of 1964 provides, in 

relevant part: 

 

 It shall be an unlawful employment 

practice for an employer to fail or refuse 

to hire or to discharge any individual, or 

otherwise to discriminate against any individual with respect to his compensation, 

terms, conditions, or privileges of employment, because of such individual's . . . 

sex, . . .; or to limit, segregate, or classify 

his employees or applicants for employment in any way which would deprive or 

tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, 

because of such individual's . . . sex. 

 

42 U.S.C. § 2000e-2(a) [*18] . A court's analysis of an 

unlawful employment discrimination allegation proceeds 

either according to the familiar burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 

U.S. 792, 798, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), 

or under the so-called mixed motive theory approach. 

1. The "Mixed Motive" Theory 

In Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 

109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality 

opinion), the Supreme Court outlined a burden-shifting 

framework applicable to mixed motive cases. If the 

Plaintiff establishes that a prohibited discriminatory factor played a "motivating part" in a challenged employment decision, the burden shifts to the employer to prove 

by a preponderance of the evidence that it would have 

made the same decision anyway. The Plaintiff must be 

able to produce a "smoking gun" or at least a "thick 

cloud of smoke" to support her allegations of discriminatory treatment in order for the burden to shift to the Defendant. Raskin v. The Wyatt Company 125 F.3d 55, 61 

(2d Cir. 1997) (quoting Fields v. New York State Office 

of Mental Retardation and Developmental Disabilities,

115 F.3d 116, 124 (2d Cir. 1997). Evidence that calls for 

[*19] a shift in burden under the Price Waterhouse

analysis includes policy documents and evidence of 

statements or actions by decision-makers "that may be 

viewed as directly reflecting the alleged discriminatory 

attitude." Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 

171, 182 (2d Cir. 1992). 

2. The McDonnell Douglas Disparate Treatment 

Theory 

Most claims of unlawful employment discrimination 

under Title VII are analyzed according to the familiar 

burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S. Ct. 1817, 36 

L. Ed. 2d 668 (1973). Under McDonnell Douglas, the 

plaintiff bears the initial burden of establishing a prima 

facie case of discrimination through direct or circumstantial evidence. Windham v. Time Warner, Inc., 275 F.3d 

179, 187 (2d Cir. 2001). The plaintiff's burden at this 

stage is de minimis, and the requirement of meeting this 

burden "is neither onerous, nor intended to be rigid, 

mechanized or ritualistic." Abdu-Brisson v. Delta Air 

Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001) (internal 

quotations and citations omitted). To make out a prima 

facie discrimination claim, a plaintiff [*20] must demonstrate: (1) that he or she is a member of a protected 

class; (2) that he or she is qualified for the position in 

question; (3) that he or she suffered an adverse employment action; and that (4) the circumstances surrounding 

the adverse action give "rise to an inference of discrimination." Windham, 275 F.3d at 187 (citation omitted). 

A plaintiff who is able to make out a prima facie 

case establishes a presumption of discrimination and the 

burden of production shifts to the defendant. See 

Woodman, 411 F.3d at 76. The defendant must meet this 

burden by articulating a reason for the challenged conduct that "taken as true, would permit the conclusion that 

there was a nondiscriminatory reason for the adverse 

action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 

509, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) (emphasis in original). 

If the defendant is able to present a nondiscriminatory explanation for the challenged conduct 

"the presumption of discrimination drops out" and the 

burden of proof shifts back to the plaintiff. Woodman,

411 F.3d at 76 (citation omitted). The plaintiff must then 

prove "that the legitimate reasons offered by [*21] the 

defendant were not its true reasons, but were a pretext for 

discrimination." Reeves v. Sanderson Plumbing Prods., 

Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 

105 (2000) (quotations and citations omitted). In showing that the employer's explanation was pretextual, the 

plaintiff need not prove that the explanation offered by 

the employer was entirely false "but only that its stated 

reason was not the only reason" and that consideration of 

an impermissible factor "did make a difference." 

Montana v. First Federal Sav. & Loan Ass'n of Rochester, 869 F.2d 100, 105 (2d Cir. 1989). 

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C. Plaintiff's Sex Discrimination Claim Under Title VII 

1. No genuine issues of material fact 

Plaintiff argues that she has brought forth evidence 

of multiple genuine issues of material fact which would 

preclude granting Defendant's Motion for Summary 

Judgment. Furthermore, Plaintiff argues that the facts in 

the record support a claim under both the mixed motive 

and the disparate treatment theories of employment discrimination. Having carefully considered the Parties' 

arguments and their supporting affidavits, declarations 

and exhibits, the Court finds that there are no genuine 

issues of material [*22] fact which would justify a trial 

of Plaintiff's claims. 

The dispute over whether the Human Resources department had sole authority to make hiring decisions is 

not material because Plaintiff need not show that the 

ultimate decision maker based the adverse decision on an 

impermissible basis. The courts have recognized that 

"the impermissible bias of a single individual at any 

stage . . . may taint the ultimate employment decision . . . 

This is true even absent evidence of illegitimate bias on 

the part of the ultimate decision maker, so long as the 

individual shown to have the impermissible bias played a 

meaningful role . . . ." Bickerstaff v. Vassar College, 196 

F.3d 435, 450 (2d Cir. 1999) (citing Lam v. Univ. of Hawaii, 40 F.3d 1551, 1560 (9th Cir. 1994)). 

The parties also dispute whether the initial "letter of 

congratulations" sent to Plaintiff constitutes an employment action. This too is immaterial because there is evidence of other actions against Plaintiff that could constitute an "adverse employment action." An "adverse employment action" under Title VII is one which is more 

disruptive than a mere inconvenience or an alteration of 

job responsibilities. [*23] Feingold v. New York, 366 

F.3d 138 (2d Cir. 2004). Either the initial rejection letter 

sent to Plaintiff in May 2002 or the delayed hiring of 

Plaintiff could constitute "adverse employment actions" 

since both were more than a mere inconvenience or alteration of job responsibilities. At the least, they were 

outright denials of employment for a limited period of 

time. Either could satisfy the "adverse employment action" requirement of the McDonnell Douglas prima facie 

case. It is therefore unnecessary to resolve the dispute 

over whether the congratulatory letter is an adverse action. 

A third contested issue deals with Rivera and 

whether he was selected over Plaintiff for the position of 

Community Coordinator. Plaintiff argues that Rivera was 

placed in the position that was "earmarked" for Plaintiff. 

Defendant concedes that Rivera was sent to Butler and 

did occupy the only "Community Coordinator" budgetary line that was available at that facility during the time 

period relevant to this dispute. Evidence that a person 

who is not in the plaintiff's protected class was selected 

to receive some employment benefit over the plaintiff 

would provide an inference of discrimination [*24] under the fourth prong of the prima facie case. See 

Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d 

Cir. 1996) (citing Washington v. Garrett, 10 F.3d 1421, 

1434 (9th Cir. 1993)). However, it is clear from the record that Rivera was not actually selected over Plaintiff 

and so there is no genuine issue of material fact in this 

regard. 

Despite holding the title of "Community Coordinator," Rivera apparently did not supervise employees or 

conduct any of the type of work that would be required 

of an employee that held the functional position sought 

by Plaintiff. Moreover, Rivera's own declarations and 

testimony supports the claim that he was placed at Butler 

on a temporary basis to oversee repair work at the facility. That Rivera was subsequently transferred to Soundview Senior Center in December 2001 provides further 

support that his assignment to Butler was temporary and 

was not meant to be a permanent selection of Rivera over 

Plaintiff. 

Finally, the parties dispute the role of Figueroa in 

the hiring process. Although Figueroa is a lower level 

employee, it is clear from the record that she did participate in the decision making process. She [*25] interviewed Plaintiff and made recommendations to her superiors supporting Plaintiff's employment application. Although Figueroa's was not the last word in the decision to 

hire Plaintiff, as noted above, impermissible bias can 

come from any party involved in the decision making 

process. And it is undisputed that Figueroa played a role 

in the selection process. 

2. Defendant is entitled to a judgment as a matter of 

law 

The facts on the record conclusively establish that 

Plaintiff will be unable to carry her burden under either 

the mixed motive or the disparate treatment theories of 

employment discrimination. 

Plaintiff's testimony is the only evidence on the record directly ascribing discriminatory intent to Figueroa 

and Defendant and it consists largely of her uncorroborated accounts of what Figueroa allegedly said on one 

occasion. The alleged statement could raise a genuine 

issue of fact as to defendant's intent. See Holtz v. Rockefeller & Co., 258 F.3d 62, 78 (2d Cir. 2001). Courts have 

held that "the discriminatory animus of intermediate supervisors who have input in the decision making process 

will not give rise to liability if the supervisor with final 

authority [*26] bases an adverse employment action 

exclusively on an independent evaluation. But the employer will be liable 'where the decision maker 'rubber 

stamps' the . . . recommendation of the subordinates; in 

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such cases . . . the decision maker acts as a conduit of the 

subordinates' improper motive.'" Fullard v. City of New 

York, 274 F. Supp.2d 347, 357 (S.D.N.Y. 2003) (quoting 

Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001)). 

The record clearly shows that Lozano had made an 

employment decision regarding Plaintiff for the position 

as early as August 23, 2000, well before Plaintiff's interview with Figueroa in March 2001. Gilliard's decision 

initially to not pursue Lozano's recommendations also 

appears to be clearly independent of Figueroa's allegedly 

discriminatory intent, since she took over nearly a year 

after the statements were allegedly made and there was 

no evidence at all in the record that Gilliard interacted 

with Figueroa in making her decision. The fact that 

Gilliard mentioned in an email she sent to Queenan the 

possibility that Plaintiff might sue if she was not ultimately hired does not on its face indicate any sort of discriminatory intent. [*27] Furthermore, Plaintiff had filed 

her complaint with the EEOC on April 18, 2002. (Aff. of 

Okoronkwo at Ex. 8.) Gilliard's May 29, 2002 email to 

Queenan was an eminently reasonable inquiry in light of 

the fact that Plaintiff had already clearly indicated that 

she might file a lawsuit. The record simply contains no 

evidence that Lozano or Gilliard served as mere conduits 

of Figueroa's allegedly improper motive. 

There is no evidence that the alleged statements 

made by Figueroa actually tainted the employment decision ultimately reached nor is there any persuasive evidence that Rivera was selected over Plaintiff for the 

Community Coordinator position. Plaintiff has therefore 

failed to establish an inference of discrimination that 

would support the fourth prong of a prima facie discrimination case under the McDonnell Douglas framework. Even if Figueroa's stray remark - allegedly evidencing animus against Plaintiff's sex - could support an 

inference of discrimination, Defendant has brought forth 

evidence of legitimate, non-discriminatory reason for its 

actions that have not been rebutted by Plaintiff. Defendant has amply demonstrated that the delay in hiring 

Plaintiff was due to the [*28] lack of an additional 

budget line for the Community Coordinator position at 

Butler. Moreover, it is apparent from the record that the 

initial decision by Gilliard to not immediately approve 

Plaintiff's employment application was based on her legitimate, non-discriminatory judgment to not automatically adopt her predecessor's hiring decisions. Plaintiff 

has not brought forth any evidence that the foregoing 

reasons offered by Defendant to explain the delay in hiring her were merely pretextual. Beyond mere speculation 

and conclusory allegations, Plaintiff has failed to establish that her sex was a substantial factor in the delay in 

processing her employment application. Finally, Defendant's evidence, undisputed by Plaintiff, that it has generally hired women at favorable rates in comparison with 

men during the period relevant to this dispute demonstrates that Plaintiff would not be able to prevail on a 

"mixed motive" theory of discrimination either. Even if 

true, Figueroa's alleged remark is insufficient to constitute a "smoking gun" or a "thick cloud of smoke". See 

Raskin, 125 F.3d at 61. 

Accordingly, Defendant's Motion for Summary 

Judgment on Plaintiff's Title VII [*29] claim is 

GRANTED. 

D. State and Local Claims 

The same standards that apply to Title VII employment discrimination claims are applicable to claims 

brought under the New York Human Rights Law and 

New York City Administrative Code. See Mark v. The 

Mount Sinai Hospital, 85 F. Supp.2d 252 (S.D.N.Y. 

2000); James v. New York Racing Ass'n, 233 F.3d 149, 

153 (2d Cir. 2000). Since Defendant is entitled to summary judgment on Plaintiff's Title VII claim, it is likewise entitled to summary judgment on the state and local 

claims. Accordingly, Defendant's Motion for Summary 

Judgment on Plaintiff's state and local claims is 

GRANTED. 

E. Plaintiff's Cross-Motion Regarding the EEOC's Investigation 

Plaintiff has cross-filed for Partial Summary Judgment seeking to estop the Defendant from denying 

statements it made during the course of an investigation 

by the EEOC and that it submitted to the EEOC pursuant 

to 28 U.S.C. § 1746. It is well settled that EEOC findings 

in a particular matter are not binding on the courts. An 

EEOC "probable cause" determination is not a final 

judgment. Indeed, in McDonnell Douglas the court noted 

that where the commission [*30] has not found reasonable cause a district court is not prevented from reviewing the lawsuit in its entirety: 

 

 The Commission itself does not consider the absence of a "reasonable cause" 

determination as providing employer immunity from similar charges in a federal 

court . . . and the courts of appeal have 

held that, in view of the large volume of 

complaints before the Commission and 

the non-adversary character of many of its 

proceedings, court actions under Title VII 

are de novo proceedings and . . . a Commission "no reasonable cause" finding 

does not bar a lawsuit in the case. 

 

McDonnell Douglas, 411 U.S. at 799. The same holds 

true if the EEOC has issued a reasonable cause determiCase 1:07-cv-03583-LBS-RLE Document 25-2 Filed 04/28/2008 Page 8 of 10
2007 U.S. Dist. LEXIS 9148, * 

Page 8 

nation, as it did in this case. Since this Court reviews 

Title VII proceedings de novo, neither the EEOC's findings nor the underlying facts supporting such findings 

are binding on it. Therefore, Plaintiff may not estop Defendant from denying statements made during the course 

of EEOC investigations. Accordingly, Plaintiff's Crossmotion for Partial Summary Judgment is DENIED. 

III. CONCLUSION 

For the foregoing reasons, Defendant's Motion for 

Summary Judgment is GRANTED [*31] in its entirety. 

Plaintiff's Cross-motion for Partial Summary Judgment is 

DENIED. The Clerk of Court is directed to close the 

docket for this case. 

SO ORDERED. 

Dated: New York, New York 

January 31, 2007 

Deborah A. Batts 

United States District Judge 

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