Joseph v. New York City Department of Corrections et al

Filing 36

MEMORANDUM & ORDER For the reasons discussed above, the court converts Defendants' 21 Motion to Dismiss into a motion for summary judgment. Defendants' motion for summary judgment is GRANTED in its entirety. The Clerk of Court is directed to close this case. So Ordered by Judge Nicholas G. Garaufis on 5/12/2011. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)

i?/F
FILED
IN ClERK'S OFFICE
US DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

* MAY I 3 2011 *

-------------------------------------------------------------------){

BROOKLYN OFFICE

PATRICK JOSEPH,

MEMORANDUM & ORDER
Plaintiff,

10-CV-1265 (NGG) (LB)
-againstNEW YORK CITY DEPARTMENT OF
CORRECTIONS, ASSISTANT DEPUTY KAREN
COLLINS alk/a K. COLLINS, DEPUTY WARDEN
HAKIM S. EL QUHIR, CITY OF NEW YORK,
CAPTAIN DENISE COLLIER a/k/a N. COLLIER,
CAPTAIN MAJ<OLAINE MINGO a/k/a
M. MINGO, and CAPTAIN ADA PRESLEY alkla
PRESLEY,
Defendants.

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NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Patrick Joseph ("Joseph"), prose, brings this action against his current
employer, the New York City Department of Corrections (''NYCDOC"), 1 and several of his
supervisors (collectively, "Defendants"), under various federal and state causes of action. (Am.
Compl. (Docket Entry# 17).) Defendants move to dismiss under Federal Rules of Civil
Procedure 12(b)(I) and 12(b)(6). (Defs.' Mot. (Docket Entry# 21).) As set forth below, the
court converts Defendants' motion into one for summary judgment under Federal Rule of Civil
Procedure 12(d), and grants summary judgment in favor of Defendants.

I.

LEGAL STANDARDS
"If, on a motion under Rule 12(b)(6) ... matters outside the pleadings are presented to

and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56." Fed. R. Civ. P. 12(d). "All parties must be given a reasonable opportunity to present
1

Following a conference with the court, Joseph filed a letter with the court on November I, 20 I 0 requesting
permission to remove NYCDOC from his action. (Docket Entry# 19.) The court granted that request on November
2, 2010 (Docket Entry# 20.)

all the material that is pertinent to the motion." Id. On a motion for summary judgment, the
court may consider "depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1 )(A). 2 "The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is
material if its existence or non-existence "might affect the outcome of the suit under the
governing law," and an issue of fact is genuine if "the evidence is such that a reasonable jury
could return a verdict for the [non-moving] party." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In determining whether a genuine issue of material fact exists, "the court must
draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing
Prods .. Inc., 530 U.S. 133, 149 (2000). Where a plaintiff proceeds prose, the court reads his
submissions liberally and interprets them as raising the strongest arguments they suggest. See
McEachin v. McGuinnis, 357 F.3d 197,200 (2d Cir. 2004); Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994).
Here, Joseph filed an Amended Complaint with the court, attaching fifteen pages of
exhibits related to his claims. (Am. Campi.} As part of their motion to dismiss, Defendants
attached five exhibits, including letters purportedly written by Joseph to his union grievance
committee and Joseph's disciplinary records. (Defs.' Mot. Exs. B-E.) Defendants also filed a
notice, under Local Civil Rule 12.1, making Joseph aware that the court may convert its motion
into one for summary judgment (the "Rule 12.1 Notice"). (Docket Entry# 24.) Joseph
responded to Defendants' Rule 12.1 Notice by attaching an additional twenty-five exhibits to his

2

This quote reflects the amendments to Federal Rule of Civil Procedure 56, which became effective December I,
2010.

2

Opposition. (Pl.'s Opp'n (Docket Entry# 30) Exs. A-Y.) Therefore, all parties have had a
reasonable opportunity to present all the material pertinent to Defendants' motion: Defendants
have attached documentary evidence to their motion, and Joseph has done the same. Because the
court considers these attached materials in its opinion, it converts Defendants' motion to dismiss
to one for summary judgment under Federal Rule of Civil Procedure 12(d). See Mateo v.
O'Connor, No. 08-cv-11053 (RJH) (DCF), 2010 WL 3199690, at *3 (S.D.N.Y. Aug. 12, 2010)
(converting defendants' motion to dismiss to one for summary judgment, against a prose
plaintiff, where defendants notified plaintiff of their intent to convert their motion into one for
summary judgment, and where the prose plaintiff had an adequate opportunity to attach
pertinent documents to his opposition).

II.

BACKGROUND
Joseph's allegations stem from a series of incidents from July 2008 to May 2009.

A.

The July 30 and August 18, 2008 Incidents

Joseph has been a corrections officer for NYCDOC at the Rose M. Singer Center on
Rikers Island since June 29, 2006. 3 (Am. Compl. ~~ 2, 3.) On July 30, 2008, Defendant Captain
Denise Collier ("Collier") requested that Joseph switch posts to relieve an officer who needed to
go on an Emergency Medical Service ("EMS") "run.'"' (Pl.'s Opp'n Ex. B.) The following day,
Joseph filed a union grievance against Collier for changing his post and not equitably assigning
overtime to him. (Pl.'s Opp'n Ex. A at I.) On August 14,2008, Collier drafted a report to
3

Joseph states in his Amended Complaint that Rikers Island is located in Queens, New York. (Am. Compl., 3.)
This is incorrect; Rikers Island is located in Bronx County, New York. Brooks v. Strack, No. 98-CV-6528 (JG),
1999 WL 672949, at *4-5 (E.D.N.Y. Aug. 25, 1999). As such, the events giving rise to Joseph's Amended
Complaint did not occur within the territorial limits of this district. See id. Therefore, although it is unclear whether
venue is proper in this district, because Defendants have failed to raise this argument in their initial papers, they
have waived any objections to improper venue. Benjamin v. Carusona, No. 09 Civ. 9722 (RWS), 2010 WL
4448213, at *7 (S.D.N.Y. Nov. 5, 2010) (citing Concession Consultants, Inc. v. Mirisch, 355 F.2d 369,371 n.l (2d
Cir. 1966)).
4
Both Plaintiff and Defendants use the terminology "an EMS run" to describe correction officers' duties in
transporting inmates due to an emergency medical situation. The court adopts the terminology here.

3

Warden Michelle Mack ("Mack"), assuring her that Joseph was equitably receiving overtime,
and explaining that she asked Joseph to change posts due to an EMS situation. (Pl.'s Opp'n Ex.
B.)

Later, on August 18, 2008, Collier again requested that Joseph change posts. (!d. Ex. A
at 3.) Joseph complained, and Collier filed a formal reprimand against Joseph. (l!l) Joseph then
wrote a letter to Mack complaining about Collier's treatment of him. (Id. Ex. A at 2.)
B.

Tbe April 10, 2009 Incident

On April I 0, 2009, Defendant Captain Maxsolaine Mingo ("Mingo") asked Joseph to go
on an EMS run. (Defs.' Mot. Ex. D.) Joseph informed Mingo that he was not qualified to
participate in the EMS run because he was not qualified by NYCDOC to use a firearm. (!d.)
Mingo, however, apparently believed that Joseph was qualified to use a firearm because
"according to the Training Roster [Joseph] was qualified on 7-08-08." (!d.) Joseph explained to
Mingo that he was not firearm qualified under NYCDOC's own regulations, and had brought
this issue to NYCDOC's attention in December 2008. (Pl.'s Opp'n Ex. Cat 1.) Mingo then
asked Joseph to submit a report detailing his firearm qualification status. (Defs.' Mot. Ex. D.)
Joseph submitted a report stating the same and attaching a letter he had written to Mack on
December 5, 2008, in which he had requested training to become firearm qualified. (Pl.'s Opp'n
Ex. Gat 2.) The letter included a handwritten note in response, signed by Defendant Captain
Ada Presley ("Presley") and dated December 15, 2008, stating: "As space becomes available at
the [shooting] range you will be scheduled." (!d.)
The same day, after investigating the matter, Mingo found that although Joseph was not
qualified to carry an NYCDOC firearm, Joseph was carrying a personal firearm. (Defs.' Mot.
Ex. D.) An NYCDOC personnel officer informed Mingo that Joseph was required to surrender

4

his personal firearm, and Mingo ordered Joseph to do so. (ld.) Joseph refused. (ld.) Joseph
then filed a departmental grievance against Mingo for asking him to write a report and ordering
him to turn in his personal firearm. (Pl.'s Opp'n Ex. Cat 1.) The following day, Joseph filed
another departmental grievance against Collier, claiming that she had also requested him to turn
in his firearm.

M Ex. C at 2.) On April 14, 2009, after refusing to turn in his personal firearm

for several days, Mingo filed a Supervisor's Complaint Report against Joseph. (Defs.' Mot. Ex.
D; Pl.'s Opp'n Ex. I.) On April 15, 2009, Joseph filed another departmental grievance against
Collier and Mingo. (Defs.' Mot. Ex. Eat 1.) On April 20, 2009, Mingo filed a Jetter with
Warden Arthur Olivari explaining the necessity of filing a report against Joseph. (Pl.'s Opp'n
Ex. I.) On June 19, 2009, the Commissioner of Correction held a hearing regarding Mingo's
Supervisor's Complaint Report for Joseph's initial refusal to provide a report detailing his
qualification status and his refusal to turn in his personal firearm. (Pl.'s Opp'n Ex. F.)
C.

The Apri116, 2009 Incident

On April 16, 2009, Presley recommended Joseph for drug testing. (Am. Compl.

~

21.)

Joseph claims Presley recommended him for drug testing in retaliation for his complaints against
his supervisors. (Id.)
D.

The May 4, 2009 Incident

On May 4, 2009, Collier directed Joseph to submit a late slip and to accompany other
NYCDOC officers en route to Elmhurst Hospital Prison Ward. (Defs.' Mot. Ex. F.) Rather than
reporting to travel to Elmhurst, Joseph changed into civilian clothes and left work. (.!QJ Joseph
returned to work two hours later and was questioned by Collier, who directed him to file a report
explaining his actions. (I d.) Joseph filed a report claiming that he left because he was needed at

5

home. (Pl.'s Opp'n Ex. L.) Collier filed her own report against Joseph for insubordination on
May 12,2009. (Defs.' Mot. Exs. F, K.)

E.

Joseph's Medical Leave and Request for Transfer

On May 5, 2009, Joseph began medical leave from his position at NYCDOC due to his
high blood pressure. (Am. Compl.

~

23; Pl.'s Opp'n Ex. M.) Joseph returned to work on June

I 0, 2009. (IQJ Joseph claims he was placed on light duty until July 16, 2009.

(!d.~

23.)

Joseph requested an interdepartmental transfer in July 2009. (See Pl.'s Opp'n Ex. N.) That
transfer request was denied on August I 0, 2009 due to "pending disciplinary action" against him.
(IQJ On October 7, 2009, Joseph was designated as chronically absent by NYCDOC. (Pl.'s
Opp'n Ex. P.)

F.

Joseph's EEOC Complaints

Joseph "contacted" the EEOC in June 2009 regarding a discrimination claim. (See Am.
Compl.

~

29.) On June 5, 2009, the EEOC sent Joseph a letter stating that "the basis of [his]

complaint is not established," and therefore, the EEOC could not investigate his claims. (!lt Ex
B.) On June 16,2009, Joseph sent another letter to the EEOC complaining about Collier and
Mingo. (!lt Ex. D.) On August 27,2009, Joseph filed a discrimination charge with the EEOC
complaining that Collier and Mingo discriminated against him. (!lt Ex. C.; Pl.'s Opp'n Ex. E.)
On January 7, 2010, the EEOC issued Joseph a right to sue letter. (ld.

~

31; Ex. A.) Joseph filed

his Complaint on March 19, 2010. (Compl.)

III.

DISCUSSION
A.

Joseph's Amended Complaint

Joseph's Amended Complaint asserts claims under Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17; New York State Human Rights Law (the

6

"State HRL"), N.Y. Exec. Law§ 291; New York City Administrative Code, Civil Rights Law
(the "City HRL"), N.Y.C. Admin. Code§§ 8-107, 8-502; and the Fourteenth Amendment to the
U.S. Constitution by way of 42 U.S.C. § 1983. (Am. Compl. ~~ 44-80.) Under each of these
5

provisions, Joseph alleges that he was the victim of discrimination and retaliatory treatment by
Defendants in relation to the complained-of incidents.

B.

Joseph's Title VII, State HRL, and Equal Protection Claims
I.

Discrimination

Title VII and the State HRL set forth parallel requirements for a plaintiff to establish a
claim of discrimination. See White v. Eastman Kodak Co., 368 F. App'x 200, 202 n.l (2d Cir.
2010). Further, "the analytical framework of a workplace equal protection claim parallels that of
a discrimination claim under Title VII." Cunningham v. N.Y. State Dep't of Labor, 326 F.
App'x 617,620 (2d Cir. 2009). Because Joseph also brings equal protection claims under the
New York State Constitution, that framework applies to those claims as well. Hayut v. State
Univ. ofN.Y., 352 F.3d 733,754 (2d Cir. 2003) (citing Brown v. State, 89 N.Y.2d 172, 190
(1996)).
The court analyzes all of these claims under the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See White, 368 F. App'x at 202 n.l; Schiano v.
Quality Payroll Sys., 445 F.3d 597, 609 (2d Cir. 2006). First, a plaintiff must establish a prima
facie case of discrimination. To establish a prima facie case of discrimination, a plaintiff must
demonstrate that: 1) he belonged to a protected class; 2) he was qualified for the position; 3) he
was subjected to an adverse employment action; and 4) the adverse action occurred under
circumstances giving rise to an inference of discrimination. See Terrv v. Ashcroft, 336 F.3d 128,
'Joseph mentions age discrimination once in his Amended Complaint: in the header of his claim of discrimination
in violation ofNYCHRL. (See Am. Compl. at 8.) The court assumes this one mention was a typographical error,
and will not construe Joseph as bringing an age discrimination claim.

7

137-38 (2d Cir. 2003). If the plaintiff can establish a prima facie case of discrimination, the
burden then shifts to the defendant to offer a legitimate, non-discriminatory rationale for its
actions. McDonnell Douglas, 411 U.S. at 802. Should a defendant offer a neutral explanation
for its actions, the plaintiff may defeat summary judgment by offering evidence sufficient to
show that the proffered neutral explanation was a pretext for discrimination. Id. at 804.
Under this framework, Joseph fails to establish a prima facie case of discrimination under
Title VII, the State HRL, or the equal protection clauses to the U.S. or New York State
Constitutions. Even construing his Amended Complaint liberally, none of the incidents
described in his Amended Complaint constitute an "adverse employment action." For purposes
of Title VII, an adverse employment action must be "a 'materially adverse change' in the terms
and conditions of employment." See Galabya v. N.Y.C. Bd. ofEduc., 202 F.3d 636,640 (2d Cir.
2000). This "must be more disruptive than a mere inconvenience or an alteration of job
responsibilities." Stoddard v. Eastman Kodak Co., 309 F. App'x 475,478 (2d Cir. 2009)
(quoting Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008)). The adverse action must rise
to the level of"termination of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices unique to a particular situation." Id. at 4 78-79.
Beginning with Joseph's most serious complaint, Joseph claims that Defendants' refusal
of his request to transfer posts on August I 0, 2009 constituted an adverse employment action.
(See Pl.'s Opp'n Ex. N.) In some circumstances, denials of transfer requests may constitute an
adverse employment action. Beyer v. Countv of Nassau, 524 F.3d 160, 164 (2d Cir. 2008). To
qualify, a plaintiff must show "objective indicia of material disadvantage; subjective, personal
disappointment is not enough." Id. (internal alterations omitted). Even construing Joseph's

8

papers liberally, Joseph alleges nothing in his Amended Complaint, nor provides any evidence
on summary judgment, that Defendants' refusal of his transfer request caused him anything more
than "subjective, personal disappointment." Joseph's dejection, however, is not enough to
establish a prima facie case of discrimination surrounding his transfer request.
Aside from his transfer request, none of the remaining incidents described in Joseph's
Amended Complaint even remotely rise to the level of severity required to establish a prima
facie case of discrimination. First, Defendants' designation of Joseph as chronically absent
following his return to work after medical leave was well within NYCDOC's rights to take
corrective action against an absentee employee. See Gentile v. Potter, 509 F. Supp. 2d 221, 241
(E.D.N.Y. 2007) (right of employer to mark employees as "absent without leave" ("AWOL")
precludes finding of adverse employment action where employee is actually AWOL); see also
Lucas v. Potter, Civ. No. 3:08CV480 (HBF), 2010 WL 148451, at *8 (D. Conn. Jan. 12, 2010)
(marking postal employee as AWOL not an adverse employment action). And Defendants'
filing of Complaint Reports against Joseph-all for insubordination not contested by Josephdid not constitute an adverse employment action against Joseph because none of those reports
materially altered Joseph's working conditions. See Weeks v. N.Y. State (Div. of Parole), 273
F.3d 76 (2d Cir. 2001) ("notice of discipline" not a materially adverse employment action where
plaintiff failed to describe how notice affected her), abrogated on other grounds by Nat'l R.R.
Passenger Com. v. Morgan, 536 U.S. 101 (2002); Milford v. N.Y.C. Bd. of Health, Nos. 02-cv2834 (SJF) (LB), 03-cv-2765 (SJF) (LB), 2005 WL 195561, at *4 (E.D.N.Y. Jan. 27, 2005)
(warning notices due to insubordination not adverse employment actions where insubordinate
behavior is not contested).

9

Joseph's remaining complaints are even less significant. Defendants' requests that
Joseph temporarily change posts to relieve a colleague in an emergency situation, as in the July
30 and August 18, 2008 incidents, does not approach a "materially adverse change" for the
purpose of establishing a prima facie case. See Reyes v. City of Bridgeport, Civ. No. 07CV1236
(WWE), 2009 WL 3571305, at *4 (D. Conn. Oct. 26, 2009) (temporary assignment to the
midnight shift not an adverse employment action); DeMars v. O'Flynn, 287 F. Supp. 2d 230,
245-46 (W.D.N.Y. 2003) (temporary assignment to the day shift not an adverse employment
action); Ofori-Awuku v. Epic Sec., No. 00 CJV. 1548 (AGS), 2001 WL 180054, at *4 (S.D.N.Y.
Feb. 23, 2001) (change oflocation for private security guard not an adverse employment action).
Defendants' requests that Joseph file written reports as part of his job are similarly de minimis.
See Carter v. New York, 310 F. Supp. 2d 468,478-79 (N.D.N.Y. 2004) (requiring plaintiff to
document travel expenses was not an adverse employment action); Hahn v. Attica, No. 98-CV0516E (SR), 2000 WL 33159187, at *8 (W.D.N.Y. Dec. I, 2000) (requiring plaintiff to file
written report to obtain bereavement leave not an adverse employment action). Defendants'
demand that Joseph tum in his personal firearm-where Joseph refused to do so--was also not a
materially adverse change to his employment status, see Como v. O'Neill, No. 02 Civ.
0985(HB), 2002 WL 31729509, at *2 (S.D.N.Y. Dec. 4, 2002) (taking away plaintiffs weapon
for safety concerns not an adverse action), nor was Defendants' demand that Joseph take a single
drug test. Fortsv. Citv of New York Dep't ofCorr., No. 00 Civ. 1716 (L TS)(FM), 2003 WL
21279439, at *9 (S.D.N.Y. June 4, 2003) (Department of Correction's requirement that plaintiff
take multiple drug tests was not an adverse employment action). Joseph's discrimination claims
under Title VII, the State HRL, and the equal protection clauses to the U.S. and New York State
Constitutions wholly fail.

10

2.

Retaliation

The McDonnell burden shifting framework also applies to claims for retaliation. Platt v.
Inc. Viii. of Southampton, 391 F. App'x 62,64 n.1 (2d Cir. 2010) ("We analyze retaliation and
discrimination claims under the ADA and Title VII under the same burden-shifting framework
established by the Supreme Court in McDonnell Douglas Com. v. Green."). A plaintiff must
establish a prima facie case of retaliation by showing that "(I) [he] participated in a protected
activity, (2) the defendant knew of the protected activity; (3) [he] experienced an adverse
employment action; and (4) a causal connection exists between the protected activity and the
adverse employment action." Nieves v. Angelo, Gordon & Co., 341 F. App'x 676, 679 (2d Cir.
2009).
"The term 'protected activity' refers to action taken to protest or oppose statutorily
prohibited discrimination" in violation of Title VII. Cruz v. Coach Stores, Inc., 202 F.3d 560,
566 (2d Cir. 2000). Generally, internal complaints about employer treatment constitute
"protected activity" in establishing a prima facie retaliation claim. Reed v. A. W. Lawrence &
Co., 95 F.3d 1170, 1178-80 (2d Cir. 1996). Here, Joseph filed several internal complaints
against his supervisors for each incident described above. Further, the evidence is uncontested
that those supervisors were aware of Joseph's internal complaints. Therefore, Joseph has met the
first two prongs of establishing a prima facie retaliation claim.
The third prong, whether the plaintiff suffered an "adverse employment action," differs
from the "adverse employment action" standard in a discrimination claim. Here, in determining
whether a plaintiff has experienced an "adverse employment action," the court must ask whether
"a reasonable employee would have found the challenged action materially adverse, which in
this context means it well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68
II

(2006). Nonetheless, "the application of pre-existing disciplinary policies to a plaintiff'without
more, does not constitute adverse employment action"' in the retaliation context. Mullins v. Citv
ofNew York, 626 F.3d 47, 53 (2d Cir. 2010) (quoting Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir.
2006}). Where the adverse employment action complained of was "consistent with [the
employer's] discipline policy, [the plaintiff does] not suffer a materially adverse action .... [and
has] not made out a prima facie case ofretaliation." Chang v. Safe Horizons, 254 F. App'x 838,
839 (2d Cir. 2007).
Here, the evidence offered by both Joseph and Defendants demonstrates that almost all of
the putative "adverse actions" were consistent with preexisting NYCDOC disciplinary and other
policies. To wit:
•

Collier's August 18, 2008 and May 12, 2009 reprimands against Joseph for
insubordination were directly pursuant to NYCDOC Rules 3.20.180 and
3.20.190, governing reports due to insubordination (Pl.'s Opp'n Exs. A, F, K);

•

Mingo's command that Joseph write a report detailing his firearm
qualification status and tum in his personal firearm was in accordance with the
Rose M. Singer Center Security Office's safety policy that "[m]embers of the
Department shall only carry firearms that have been authorized" (iQ, Ex. I);

•

Joseph's subsequent administrative hearing regarding his refusal to tum in his
personal firearm, even though he was not authorized to carry one, was
conducted in accordance with the Rules of the New York City Office of
Administrative Trials and Hearings (iQ, Ex. F);

•

Presley's request that Joseph take a drug test appears to be in line with the
NYCDOC's policy regarding random drug testing (iQ, Ex. D); and

•

Joseph's designation as chronically absent was in accordance with
NYCDOC's Absence Control/Uniformed Sick Leave Policy § III.G (id. Ex. Q
at 2). 6

6

The parties present no evidence that the denial of Joseph's interdepartmental transfer request followed any
preexisting NYCDOC policies. As discussed below, however, this allegation is insufficient to support a claim of
retaliation because Defendants have offered a legitimate, non-discriminatory reason for it and Joseph has not
contested this reason.
12

Even assuming, however, that Joseph suffered adverse employment actions that support
his retaliation claim, and that Joseph could establish a causal connection between those actions
and any protected activities, Defendants have offered legitimate, non-retaliatory reasons for
those actions. Indeed, Joseph's own exhibits demonstrate Defendants' quite legitimate reasons
for the actions taken against him. Collier's second request for Joseph to switch posts was due to
an emergency medical situation. (Pl.'s Opp'n Ex. B.) Collier stated to Warden Mack that she
filed a formal reprimand against Joseph, not in retaliation for his union grievance against her, but
because he was insubordinate by leaving work in violation of a direct order from his superiors.
(!d. Ex. A.) Defendants' repeated requests that Joseph turn in his personal firearm were not
retaliatory. Rather, they were indisputably because Joseph was not qualified to carry a firearm.
(Id. Ex. G.) Presley's request for Joseph to undergo drug testing was in accordance with
NYCDOC's random employee drug-screening policy. (Id. Ex. D.) Collier's report against
Joseph for insubordination was not retaliation; it was because Joseph was being insubordinate for
refusing to write a report explaining his absence on May 4, 2009. (Id. Exs. F, K.) NYCDOC's
characterization of Joseph as habitually absent was because Joseph was habitually absent: fiftynine times in 2009. ili!., Ex. Qat 3.) And Defendants' denial of Joseph's transfer request clearly

stated that Joseph's request for transfer was denied because there was "pending disciplinary
action" against him. (I d. Ex. N.)
Even construing his submissions liberally, Joseph does not contest a single one of these
proffered reasons. Rather, Joseph simply states that he "has been harassed, targeted, and
retaliated against with a series of deceptive disciplinary charges" for his conduct. (Pl.'s Opp'n 'If
7.) This conclusory statement is not enough to overcome Defendants' legitimate reasons for the
adverse employment actions under the burden-shifting framework in McDonnell. See Singh v.

13

N.Y.C. Off-Track Betting Com., No. 03-cv-5238 (JGK), 2005 WL 1354038, at *13 (S.D.N.Y.
June 8, 2005) ("conclusory allegations" of retaliation are insufficient to defeat a motion for
summary judgment in the face oflegitimate, non-pretextual reasons for adverse employment
actions).
3.

Hostile Work Environment

To the extent Joseph asserts hostile work environment claims against Defendants under
Title VII or the State HRL, those claims also fail. To make out a hostile work environment
claim, a plaintiff must show that his workplace is "permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim's
employment." Brennan v. Metropolitan Opera Ass'n. Inc., 192 F.3d 310, 318 (2d Cir. 1999)
(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). A plaintiff"must show not
only that [he] subjectively perceived the environment to be abusive, but also that the
environment was objectively hostile and abusive." Demoret v. Zegarelli, 451 F.3d 140, 149 (2d
Cir. 2006). A plaintiff must also show that the relevant conduct occurred because of his
membership in a protected class. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). To
survive a motion for summary judgment on a hostile work environment claim, a plaintiff must
demonstrate: "(1) that the workplace was permeated with discriminatory intimidation that was
sufficiently severe or pervasive to alter the conditions of his or her work environment, and (2)
that a specific basis exists for imputing the conduct that created the hostile environment to the
employer." Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (internal quotation
marks and punctuation omitted).
Joseph has failed to proffer any evidence that his workplace was permeated with
discriminatory animus. Among all the papers Joseph has submitted to the court-both of his
Complaints, his opposition to Defendants' motion for summary judgment, and the twenty-five
14

attached exhibits-not one presents even a shred of evidence that Defendants were hostile to
Joseph's protected class: Haitians. Joseph has not presented a single statement made by any of
the Defendants or described a single act in the course of his employment that even the most
racially sensitive person could possibly construe as discriminatory. Joseph's subjective feelings
of discrimination, unattached from any inference that his employers discriminated against
Haitians, does not make out a hostile work environment claim against Defendants.
C.

Joseph's City HRL Claim

Although the language ofthe City HRL tracks both Title VII and the State HRL, the New
York City Local Civil Rights Restoration Act of 2005 affords claims under the City HRL a more
liberal construction to accomplish "the uniquely broad and remedial purposes [of the City HRL],
regardless of whether federal or New York State civil and human rights laws, including those
laws with provisions comparably-worded to provisions of this title, have been so construed."
Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27,31 (2009). The Restoration Act put the
courts on notice that
(a) they had to be aware that some provisions of the NYCHRL were textually
distinct from its State and federal counterparts, (b) all provisions of the NYCHRL
required independent construction to accomplish the law's uniquely broad
purposes and (c) cases that had failed to respect these differences were being
legislatively overruled.
Id. at 32. The practical effect of this change is to eliminate the requirement that an adverse
employment action be materially adverse to the plaintiff. Id. at 33-34. Discrimination or
retaliation in "any manner" is now prohibited by the City HRL. Id. at 33; N.Y.C. Admin. Code

§ 8-107. Nonetheless, a plaintiff must still link the adverse action to a discriminatory or
retaliatory motivation. Williams, 872 N. Y.S.2d at 35. Where a plaintiff fails to do so, his claims
under the City HRL fail. Id.

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Construing his Amended Complaint liberally, Joseph claims that Defendants
discriminated against him on the basis of his national origin. (Am. Compl. TIJ60-62.) For the
same reasons that Joseph's hostile work environment claims fail-because he has entirely failed
allege any facts giving rise to an inference of discrimination-his City HRL claims fail, too.
Joseph's retaliation claims under the City HRL also do not survive. Even assuming,
arguendo, that Joseph has set forth a prima facie case of retaliation under the City HRL,
Defendants have "offer[ed] a legitimate, non-discriminatory rationale for [their] actions" in each
ofthe incidents, as described above. See McDonnell Douglas, 411 U.S. at 802; see also Spiegel
v. Schulmann, 604 F.3d 72, 80 (2d Cir. 201 0) (McDonnell burden shifting framework still
applies to the City HRL claims even after the Restoration Act). Joseph has not brought forth
even an iota of evidence demonstrating that any of these actions were merely pretext in a
skirmish of retaliation. If anything, given Joseph's work history, Defendants have shown
extreme patience in dealing with Joseph's work habits. Joseph's retaliation claim under the City
HRL cannot survive.

IV.

CONCLUSION
For the reasons discussed above, the court converts Defendants' motion to dismiss into a

motion for summary judgment. Defendants' motion for summary judgment is GRANTED in its
entirety. The Clerk of Court is directed to close this case.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn, New York
Pl\tl'f ~ 1-'1.., 2011

N HOLAS G. GARAUFI
U ited States District Judge

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