Zhou v New York City Hous. Auth.
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Zhou v New York City Hous. Auth. 2017 NY Slip Op 31575(U) July 21, 2017 Supreme Court, New York County Docket Number: 155850/13 Judge: Jennifer G. Schecter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 1] INDEX NO. 155850/2013 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 07/26/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 57 ----------------------------------------x ANDY ZHOU, Index No.155850/13 Plaintiff, -against- THE NEW YORK CITY HOUSING AUTHORITY, Defendant. ----------------------------------------x JENNIFER G. SCHECTER, J.: Pursuant Housing to CPLR Authority 3212, (NYCHA) defendant moves The for New York City judgment summary Plaintiff opposes the motion. dismissing the complaint. The motion is granted. Background Plaintiff Chinese origin Andy Zhou (Zhou), (Plaintiff's Affidavit to environment disparate because of treatment his a man in [Pl Aff] his at 50' s of 2). He <JI He alleges that he has been commenced this action in 2013. subjected is age and and a hostile national Specifically, he maintains, among other things, work origin. that: • he was denied promotion "and the only reason was due to his age and Chinese national origin" (Memorandum of Law in Opposition to Motion at 3); • he was monitored as to whom he could speak to; • he was micro-managed; • he was barraged on a daily basis with emails and calls from managers expecting an immediate response; 2 of 15 [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 2] NYSCEF DOC. NO. 91 INDEX NO. 155850/2013 RECEIVED NYSCEF: 07/26/2017 Zhou v NYCHA Index No. 155850/13 Page 2 • he was harassed in an effort to force him to retire; • • he was excluded from managerial meetings; he did not have staff; • he was subjected comments; • he was given menial duties; • he was isolated from the managerial workforce; and • he was given an excessive work load outside his job duties. (Pl Aff at to demeaning tasks and discriminatory outside his normal job 15). CJ! Plaintiff's Employment History Zhou has been employed by NYCHA since July 1994 (Chaitoff Affidavit [Aff] at CJ[ 2). In 2012, as a provisional Associate Staff Analyst, he was transferred to NYCHA's new Department of Management and Planning (DMP) and was supervised by Calcedonio Bruno (id.; Bruno Aff at CJ[ 4). His duties in the DMP included handling financial responsibilities for the Private Property Management required Program him to (PMP). work PMP with, the was administered Mixed Finance by, and Department (Defendant's Memorandum of Law in Support [Supp Memo] at 3; Pl Aff at CJ! 8). Plaintiff did not have any auditing function, nor did he approve budgets or extraordinary expenses Aff at CJ[ 7) 3 of 15 (Bruno [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 3] NYSCEF DOC. NO. 91 INDEX NO. 155850/2013 RECEIVED NYSCEF: 07/26/2017 Index No. 155850/13 Page 3 Zhou v NYCHA Vacancy Postings 0786 and 0815 NYCHA announced job vacancies through its intranet. Human Resources conducted a review of candidate submissions to ensure that they met the minimum positions (Chaitoff Aff at In February ~ Administrative Staff for "Request Form" the for because Memo that he submit ting at Zhou lacked Days 4). was the supervisory experience. not April availability Human 2012, of a position with DMP. a requisite Analyst Resources a Qualified Review Human later, qualified for executive, Resources the position managerial or Ultimately, no candidate was chosen for this position (Chaitoff Aff at In to Promotion or Transfer and (Supp determined position the Plaintiff position was announced in Vacancy Posting 0786. applied for 4). an 2012, qualifications Vacancy managerial ~ 5, Exs D and E). Posting 0815 Administrative announced Staff the Analyst Plaintiff did not apply for the position and others were selected to fill the vacancy. "Even if Mr. Zhou had applied, he was not qualified for the Administrative Staff Analyst M-2 position as he had just two months prior been Staff found unqualified Analyst position for a due non-managerial Administrative to 4 of 15 his lack of executive, [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 4] INDEX NO. 155850/2013 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 07/26/2017 Index No. 155850/13 Zhou v NYCHA Page 4 managerial, or supervisory experience" (Chaitoff Aff at ~ 6, Exs F and G) . Plaintiff's Reassignment In August 2012, plaintiff along with other NYCHA employees, was reassigned to his civil service title of "Staff Analyst because a civil service list had been established for Staff Associate the provisionally" Supp at 4). Analyst position he had held (Chaitoff Aff at ~ 3; Bruno Aff at ~ 5; Memo Prior to the pending reassignment, out of concern for the decrease in salary, Zhou asked Bruno to change his title to Administrative Staff Analyst (Bruno at ~ 5; Pl Aff at 11) . ~ Bruno asked Zhou for his resume and stated that he would have Human Resources conduct a Qualification Review to determine which positions Zhou was eligible for (Bruno Aff at ~ 5; P 1 Af f at ~ 12) . Human Resources determined that Zhou did not qualify for the Administrative Staff Analyst position because he lacked 18 months of experience in an executive, managerial, administrative or supervisory capacity (Bruno at ~ 6, Exs B and C) . Zhou believes that "the only reason he was not given the position was due to his age and Chinese national origin" (Memorandum of Law in Opposition [Opp Memo] at 3; Pl Aff at ~ 13) . 5 of 15 [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 5] NYSCEF DOC. NO. 91 INDEX NO. 155850/2013 RECEIVED NYSCEF: 07/26/2017 Zhou v NYCHA Index No. 155850/13 Page 5 Proposed Transfer to the Mixed Finance Department In March 2013, there was a proposal to transfer Zhou to the Mixed Finance Department which was relocating (Bruno Aff at 9; Memo Supp at 5). ~ After agreeing to the transfer and having an opportunity to visit the site, Zhou requested that the transfer not go forward and asked to be transferred out of the Operations Department, which encompasses the Mixed Finance Department, DMP and Technical Services (Supp Memo at 5; Bruno Aff ~ ~ The 9-10, Ex E). proposal to transfer Department was abandoned. Zhou to the Mixed At an April 2013 meeting, Finance Victor Martinez, the Vice President for Operations, discussed Zhou's job responsibilities and stated that he could have ordered him to be transferred to the Mixed Finance Department but did not because he wanted to address Zhou's concerns. this statement as Office for a threat and filed a Safety and Security (OFSS) Zhou perceived complaint with the stating that he was frightened by Martinez at the meeting and was threatened when Martinez told him "'I could order you to go there, but I did not do that'"(Rahman Aff at ~ 3, Ex B; OFSS closed the complaint (Rahman Aff at 6 of 15 Bruno Aff at ~ 4). ~ 12). [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 6] INDEX NO. 155850/2013 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 07/26/2017 Zhou v NYCHA Index No. 155850/13 Page 6 Zhou was advised to monitor internal job postings and apply for the vacancies that he was interested in (Memo Supp at 5; Bruno Aff at 13, Ex E). <J1 Plaintiff's Work Space At the time plaintiff was assigned to work at NYCHA's Long Island City facility, he was assigned a cubicle on the fifth floor by secretarial staff based on available cubicles (Bruno Aff, Ex I). NYCHA's Long Island City office is shared by four departments Unit (Schmidt Af f at The Fire Safety 2) . <J1 (FSU) of the Technical Service Department is located on the fifth floor. Zhou's cubicle abutted those of the FSU. A FSU staff member was relocating to the Long Island City office and staff were being consolidated, necessitating the use of Zhou was asked to cubicles close to the FSU cubicles (id.). move from reluctant the fifth floor (Bruno Aff at <J1 to the fourth floor but was 27) At his deposition Zhou explained that he was transferred to a small dark cubicle because he was Chinese and old and that this was a form of harassment to make him retire early (Tr at 245-246, In Schmidt, 279-280) February 2014, Assistant Department, and Mr. Director Charles Zhou at Pawson, 7 of 15 complained the that Technical Director of Joseph Service Maintenance, [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 7] INDEX NO. 155850/2013 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 07/26/2017 Zhou v NYCHA Index No. 155850/13 Page 7 Repairs and Skilled Trades Department, and scared him when change cubicles they approached (Rahman Aff at <JI spoke harshly to him him and asked 6, Ex D). him to Zhou stated that he felt threatened and was being harassed because he had an open lawsuit against NYCHA (this action) and that these actions caused him emotional and psychological stress (id.). On the next day, in response to his complaint, NYCHA's Department of Equal Opportunity (DEO) notified Zhou that his allegations applicable did law not and allege that illegal therefore it discrimination had no under jurisdiction (Rahman Aff, Ex D). Disparate Treatment and Hostile Work Environment Zhou alleges that he was bypassed for a promotion by a non-Chinese employee, Francesca Palmiero (Pl Aff at <JI 15[10]). There is no record of a NYCHA employee by the name Francesca Palmiero (Brito Aff at <JI 3). Zhou was denied an administrative transfer and believes that he was treated unfairly because he was Chinese and old (Tr at 221, 227). In April 2013, Zhou filed a Security Incident Report complaining that Maria Lopez from the Mixed Finance Department scolded him over the phone. The complaint was determined not 8 of 15 [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 8] INDEX NO. 155850/2013 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 07/26/2017 Index No. 155850/13 Page 8 Zhou v NYCHA (Rahman Aff at 11 2 and 4, to be a security or safety threat Ex A). Zhou filed a complaint against Kevin Norman and Tracey Williams with DEO for failing requests (Rahman Aff, Ex C). to timely approve payment Ms. Williams explained that any delay in responding to Zhou was not due to discrimination or harassment but rather was a result of other imperative matters In the same requiring her attention (Williams Aff at ~ 6). complaint, Zhou explained that he was "under a lot of stress" and experiencing chest difficulty pain, breathing and nervousness as a result of his job and perceived retaliation for his cubicle complaints incident) (Rahman Aff, informed and his as Ms. Mr. Martinez Lopez (the (related telephone By letter dated July 5, Ex C) that jurisdiction against complaint there was did no not 2013, fall allegation to incident) Zhou was under of the DEO's illegal discrimination (id.). In this action, Zhou claims disparate treatment as he would be "monitored as to who he could speak to," would be micro-managed on a daily basis (Tr at 230-235), was excluded from managerial meetings, did not have staff and was subjected to demeaning and discriminatory comments 9 of 15 (Pl Aff at 1 15). [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 9] INDEX NO. 155850/2013 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 07/26/2017 Index No. 155850/13 Page 9 Zhou v NYCHA Zhou testified that Bruno harassed him by not providing him with additional assistance when he was sick (Tr at 247). The complaint alleges discriminatory comments directed at Zhou. When Zhou was asked at his deposition what comments he was referring to, he responded "I can't answer this question . I cannot answer" (Tr at 265-266). When questioned about his allegations of being assigned menial tasks, he stated that he performed Staff Analyst tasks his national origin and age (his job title) because of (Tr at 267, 269). He also believed that he was doing excess work outside His beliefs his title because he was Chinese (Tr at 96-97) were based on his own comparisons of himself and others as opposed to job title descriptions (Tr at 106-107) Zhou could not provide one example of work that he did that fell outside of his title (Tr at 112). NY CHA moves motion, for it relies on, summary In judgment. among other things, support of its an affidavit from Bruno who explained that the same out of office procedures were used for all of his direct subordinates 270). (id., Tr 269- Bruno pointed out that Zhou was granted all of his 63 requested leaves of absence between November 2011 and June 2014 and that he never requested a reduction in his workload due to ailment (Bruno Aff at ~~ 20-21, 10 of 15 26, Ex H, Tr at 264- [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 10] INDEX NO. 155850/2013 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 07/26/2017 Index No. 155850/13 Page 10 Zhou v NYCHA Bruno further stated that Zhou worked independently and 265). would seek advice when questions arose (Bruno Aff at 1 24). According to Bruno, staff were instructed to copy him on emails regarding matters that he needed to be aware of but he never instructed any staff to copy him on all emails or that emails had to be responded to immediately (Bruno Aff at 1 15). As to managerial meetings, Bruno asserted that Mr. Zhou had never attended such meetings regularly, managerial meetings staff, nor did any Staff was not part of Analyst attend such (Bruno Aff at 1 16, Tr 257-258). NYCHA emphasizes that when Zhou was asked at his deposition whether the alleged "monitoring" was based on his age or national origin, Zhou stated "I cannot answer you" (Tr at 231, 234, managed, 239). When asked to explain how he was micro- Zhou answered "I can't answer" (Tr at 232) . When asked how he knew he had to immediately respond to emails he stated "I [felt] he wanted me to [answer] immediately" 238) . (Tr at Zhou testified that because he was "Chinese and old" his manager should have afforded him more time to respond (Tr at 238-239). Analysis Under New York State and City law, it is unlawful for an employer to discriminate against an individual in the terms, 11 of 15 [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 11] NYSCEF DOC. NO. 91 INDEX NO. 155850/2013 RECEIVED NYSCEF: 07/26/2017 Zhou v NYCHA conditions Index No. 155850/13 Page 11 or privileges of employment because of an individual's race or age (Executive Law§ 296; Administrative Code § 8-10 7 [ 1] [a] ) . The New protective York than Accordingly, City Human its state Rights Law (NYCHRL) federal and is more counterparts. its provisions must be liberally construed to accomplish "the uniquely broad and remedial purposes" of the law (Administrative Intesa Sanpaolo, City of New York, Code §§ S.p.A., 8-101, 8-130; 22 NY3d 881, 16 NY3d 472, 885 477-478 see Romanello v [2013]; Albunio v [2011]; Nelson v HSBC Bank USA, 87 AD3d 995, 996-997 [2d Dept 2011]; Williams v New York City Hous. Auth., 61 AD3d 62, denied 13 NY3d 702 [2009]). an "independent liberal 75 [1st Dept 2009], lv To that end, courts must conduct construction analysis" of claims brought under the NYCHRL (id.; see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 34 [1st Dept 2011], lv. denied 18 NY3d 811 [2012]; Velazco v Columbus Citizens Found., [2d Cir 2015]). statutes provide 778 F3d 409, 411 Interpretations of similar state and federal guidance "only to the extent that the counterpart provisions are viewed 'as a floor below which the City's Human Rights law cannot fall'" 66-67 [citation omitted]; Velazco, see Bennett, 778 F3d at 410). 12 of 15 (Williams, 61 AD3d at 92 AD3d at 37 n 6; [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 12] INDEX NO. 155850/2013 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 07/26/2017 Zhou v NYCHA Index No. 155850/13 Page 12 Zhou's initial burden is to establish that member of a protected class, position, ( 3) (1) he is a (2) he was qualified to hold the he suffered adverse employment action and ( 4) the adverse action occurred under circumstances giving rise to an inference of discrimination (Melman v Montefiore Med. Ctr., 98 AD3d 107 at 113). "The burden presumption of then shifts to discrimination the by employer clearly to setting through the introduction of admissible evidence, independent and nondiscriminatory reasons rebut the forth, legitimate, to support its In order to nevertheless succeed . employment decision. the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both the stated reasons discrimination was the real reason" (id. Forrest v Jewish Guild for the Blind, Additionally, plaintiff raises "an adverse] action issue was as to 'motivated discrimination'" (Melman, false 3 NY3d 295 whether least [citing denied the that (2004)]) be at and at 113-114 must judgment summary were if [employer's in part by 98 AD3d at 127; ; see also Bennett, 92 AD3d at 45 ["some evidence that at least one of the reasons proffered by defendant is false, misleading or incomplete"-should in almost every case result 13 of 15 in denial of summary [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 13] NYSCEF DOC. NO. 91 INDEX NO. 155850/2013 RECEIVED NYSCEF: 07/26/2017 Zhou v NYCHA Index No. 155850/13 Page 13 judgment]). Summary judgment dismissal is mandated, however, if there is no evidence of discrimination beyond a party's own speculation (Kosarian-Ritter v Mrs. John L. Strong, LLC, 117 Ad3d 603 [1st Dept 2014]; Kaiser v Raoul's Rest. Corp., Ad3d 426 [1st Dept 2013]; Melman v Montefiore Med. 112 Ctr., 98 Ad3d 107 [1st Dept 2012]). In response to NYCHA's legitimate and nondiscriminatory explanations for its actions, plaintiff has failed to show any pretext or that NYCHA's actions were even motivated in part by discrimination [1st Dept Chaitoff, (Bennett v Health Mgt. Sys., Inc., 92 AD3d 29 The 2011]). Schmidt and affidavits Brito as well of as Bruno, Williams, plaintiff's own testimony establish that plaintiff was not treated differently than others department. with the same qualifications within the same NYCHA further demonstrated that plaintiff was not qualified for the positions that he sought and that there were limited openings for positions. Zhou had difficulty pointing to any examples of discrimination (see e.g.s, Tr at 231, 234, 239 [asked whether monitoring was based on his age or national origin, Zhou responded "I cannot answer [asked to explain how he was micro-managed, 14 of 15 you"]; Tr at 232 Zhou stated "I [*FILED: NEW YORK COUNTY CLERK 07/26/2017 10:05 AM 14] NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 07/26/2017 Zhou v NYCHA Index No. 155850/13 Page 14 can't answer"]). at INDEX NO. 155850/2013 NYCHA There is nothing in the record even hinting attempting suggesting that to force plaintiff Zhou into early an adverse suffered retirement, employment action or that NYCHA intentionally created such an intolerable workplace environment that would have compelled a reasonable person to quit because of his age or national origin (Gaffney v City of New unsupported York, belief 101 AD3d 410 that NYCHA' s [1st Dept 2012]). actions were Zhou's motivated by discriminatory animus is nothing more than speculation and is simply not enough to defeat defendant's motion for summary judgment (see Melman, 98 Ad3d 107 [1st Dept 2012]; Bennett, 92 AD3d 29; Dept Ioele Alden Press, Inc., 145 AD2d 29 at 37 Lastly, other than a v 1989]). change in [1st cubicles, plaintiff has not pointed to any change in behavior, action or inaction occurring after he filed complaints. Accordingly, it is ORDERED that defendant's motion for summary judgment is granted and the action is dismissed and the Clerk is to enter judgment accordingly This is the Decision and Judgment Dated: July 21, 2017 G. SCHECTER 15 of 15
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