Age Discrimination Claim Survives Summary Judgment; Evidence Included Shifting of Responsibilities to Clerical Tasks and Ageist Remarks

In Spinelli v. City of New York, 13-cv-7112, 2016 WL 5476001 (S.D.N.Y. Sept. 29, 2016), the Court adopted a Magistrate’s Report & Recommendation to, among other things, deny defendants’ motion for summary judgment on plaintiff’s age discrimination claim under the New York State Human Rights Law.
As to plaintiff’s prima facie case, the Court explained:
Spinelli argues that she experienced adverse employment action through diminished work responsibilities. The Second Circuit has found that diminished work responsibilities may constitute adverse employment action where “it results in a change in responsibilities so significant as to constitute a setback to the plaintiff’s career,” Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 641 (2d Cir. 2000), or where an employee is given “profoundly different” responsibilities that represent “a severe professional … trauma.” Rodriguez v. Bd. of Ed. of Easlchesler Union Free Sch. Dist., 620 F.2d 362, 366 (2d Cir. 1980). A plaintiff may show an adverse employment action either where she is transferred to a new position with diminished work responsibilities, or where she retains the same position only in name. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008) (finding that a transfer that resulted in a “less distinguished title” and “significantly diminished material responsibilities” could be adverse employment action even though plaintiff’s wages or benefits were not affected); Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006) (finding a triable issue on the question of adverse action where plaintiff retained his title in name only and lost all job responsibilities after his transfer).
Judge Netburn correctly found that Spinelli provided enough evidence to show an adverse employment action through diminished responsibilities. According to the civil service guidelines, typical tasks of a Level 2 Paralegal Aide include: maintaining control of all relevant data and documentation pertaining to cases, arranging and overseeing service of legal papers, filing motions and support documents, preparing motions, interviewing clients, performing legal research, compiling reports, and collecting evidence. (Report, at 24; ECF No. 142-1, at 180-83.) Similarly, an April 2009 evaluation form stated that Spinelli’s responsibilities included, among other tasks, “reviewing litigation files,” “requesting agency documents,” “participating in litigation review sessions with Law Department attorneys and supervisors,” and “preparing discovery responses.” (ECF No. 193-4, at 11-12.)
*4 However, in April 2012, Spinelli’s responsibilities shifted markedly to clerical tasks—answering phones, acting as a backup receptionist, and making folders, among other assignments. (ECF No. 142-1, at 9.) Indeed, Montana-O’Connor conceded as much at the time, designating Spinelli as the office’s “full-time receptionist” upon her April 2012 return to the Manhattan Borough Unit (“MBU”), and acknowledging that Spinelli was “primarily performing clerical tasks” as of July 2013. (ECF No. 193-3, at 5; ECF No. 142-1, at 158). Based on these facts and others cited in the Report, a jury could reasonably conclude that Spinelli’s responsibilities were diminished in a way that constituted a setback to her career. As such, a genuine triable issue remains as to whether Spinelli experienced an “adverse employment action” under the NYSHRL.
The Report also properly concluded that Spinelli has met her de minimis burden of showing disparate treatment giving rise to an inference of discrimination. (Report, at 26.) A factfinder could determine that all the evidence taken together—in particular, Montana-O’Connor’s two remarks about Spinelli’s age (calling Spinelli “mature and responsible,” and asking how long Spinelli could continue to work), Spinelli’s demotion to a “full-time receptionist,” and the evidence showing that Spinelli, the oldest paralegal in her division by more than ten years, was the only one treated in this manner—establishes disparate treatment on the basis of age.

Defendants argued that they had “legitimate reasons for diminishing [plaintiff]’s responsibilities”, including that plaintiff “continued to demonstrate that she was an unreliable employee who could not be trusted to complete her projects timely or correctly after she returned to the Law Department in 2011” and that she was therefore “assigned tasks commensurate with her abilities as a Paralegal, including clerical tasks.” Among evidence submitted by defendants was an evaluation in which plaintiff was rated “Unsatisfactory.”

However, that evaluation was contradicted by “other contemporaneous evidence” reflecting positive reviews.

The Court concluded that plaintiff “provided enough evidence to create a triable issue of fact as to whether her age was the reason for her diminished responsibilities” and that “[a] reasonable jury could find that Spinelli was effectively demoted on the basis of her age and that Defendants’ explanation was mere pretext.”

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