Lynch v. New York State Urban Development Corporationet al

Filing 62

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS, For the foregoing reasons, upon de novo review, the Court adopts Magistrate Judge Scanlon's R&R, as modified by this Memorandum & Order, as the opinion of the Court. Defendants' motion for summary judgment is granted, and the case is dismissed. The Clerk of Court is directed to enter judgment accordingly and to close this case. (Ordered by Judge Eric N. Vitaliano on 8/15/2019) C/M Fwd. for Judgment. (Galeano, Sonia)

FILED
IN Gl.!";r.;<;s OFFIQE
US DIoTP.lCr COURT E

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

•A*

- W,

GREGORY LYNCH,
0FFIGE

Plaintiff,
ORDER

-against16-CV-5926(ENV)
(VMS)
NEW YORK STATE URBAN DEVELOPMENT
CORPORATION D/B/A EMPIRE STATE

DEVELOPMENT,HARLEM COMMUNITY
DEVELOPMENT CORPORATION,and VICTORIA A.
GORDON,
Defendants.
X

VITALIANO,D.J.

Plaintiff Gregory Lynch commenced the instant action on October 25,2016, bringing

claims pursuant to Title VII ofthe Civil Rights Act of 1964,42 U.S.C. § 2000e et seq.y the Nev|^
York State Human Rights Law("NYSHRL"),the New York City Human Rights Law

("NYCHRL")and 42 U.S.C. § 1981.' Dkt. No. 1. Lynch alleges that he was the subject of
retaliation as a result of a discrimination claim he had lodged against his supervisor. Defendants
!

New York State Urban Development Corporation d/b/a Empire State Development("ESD"),

Harlem Community Development Corporation("HCDC")and Victoria A. Gordon, Lynch's

supervisor, have moved for summary judgment, pursuant to Federal Rule of Civil Procedure 56
Dkt, No. 46.

By order, dated May 21, 2018, pursuant to Rule 72,the Court respectfully referred the
motion to Magistrate Judge Vera M.Scanlon for a Report & Recommendation("R&R"). On
August 10, 2018, Judge Scanlon issued her R&R,recommending that defendants' motion be

The R&R notes that Plaintiff has since discontinued his § 1983 claim. See Dkt. No.56 at 2 n.l.

denied. R&R,Dkt, No. 56. Defendants filed objections to the R&R on August 24,2018, Dkt.

No. 57, drawing opposition from Lynch on September 11,2018. Dkt. No. 58. After a de novo

review ofthe objections. Judge Scanlon's R&R is adopted as the opinion of the Court, but only
as modified by this Memorandum & Order. Significantly, with that modification, defendants'
motion for summary judgment is granted. The reasons follow.
Background^

Lynch remains employed by BSD as a Senior Field Inspector at its Atlantic Yards

Project. R&R at 2. He is African-American. Id. In September 2010, Lynch was hired to work
in HCDC's Weatherization Department as a Senior Inspector. Id. at 3. From September 2010

until his transfer in June 2015, Lynch reported to Gordon, and from 2014 until his transfer, he

was directly supervised by her. Id. Gordon, who is black but of West Indian descent, was, at a
relevant times, the Director of Weatherization at HCDC. Id.

In 2015, Lynch was interviewed as part of an investigation relating to a lawsuit filed by

former HCDC employees, which alleged discrimination by Gordon. Id. at 4. Lynch complaine d
to the interviewers that he, too, felt he was "treated unfairly because he was the only black

person who was not of West Indian descent in the Weatherization Department." Id. Although
plaintiff had previously complained, in a 2012 internal complaint, of Gordon's disparate
treatment to her subordinates, this was the first time he attributed it to national origin
discrimination. Mat4-5.

Armed with Lynch's account, one ofthe interviewers filed a complaint on his behalf witli

^ The facts are recounted in the light most favorable to plaintiff as the non-moving party, with all
reasonable inferences drawn in his favor, as they must be on a motion for summary judgment.

The Court assumes familiarity with the material facts outlined in the R&R. See generally R&]^
at 1-14. Neither party disputes Judge Scanlon's characterization of this factual background, and
the Court repeats only those facts essential to its disposition of defendants' motion.

ESD against Gordon based on race and national origin discrimination. Id. at 5. The complaint
investigator observed that Lynch was "initially uncooperative,""missed scheduled meetings, die

not respond to messages and did not comply with the request to submit a list of witnesses." Id. at
6. She further recommended that Lynch's complaint be dismissed due to his failure to cooperate

with the investigation. Id. The investigation, ultimately, did not reveal any evidence supportin
plaintiffs allegation of discrimination based on race and national origin. Id. at 7. ESD adopted
the recommendation to dismiss the complaint. Id.

Two weeks after the filing of Lynch's internal complaint, Gordon filed a similar

complaint of her own based on race, national origin and sex discrimination. Id. at 7-8. Gordon
grievance against Lynch was personal, as was his against her. In support ofthat personal

complaint, Gordon alleged that Lynch had been insubordinate and had not fulfilled his work
responsibilities because she "was a black Caribbean female in a position of authority over him
Id. at 8.

Gordon's complaint was assigned to the same investigator assigned to Lynch's case. Id.
Some ofthe coworkers interviewed during this investigation said that they had heard Lynch stat
I

that "Ms. Gordon needs to get laid," call her(and other females)a "bitch" and admit that he

"struggled taking directives from females." Id. at 8-10. Lynch denied making such comments
and characterized profanity and vulgar language as commonplace in the Weatherization
Department. Id. at 10.

The investigator concluded that there was no evidence to substantiate Gordon's allegation
of race or national origin discrimination but that there was some evidence ofsex-based
discrimination, the latter of which was evidenced by Lynch's comments and behavior, as

descnbed by his coworkers. Id. at 11. ESD placed plaintiff on probation for six months with a

direction to refrain from using misogynistic or sexual language at the workplace, and informed
him that additional violations could result in his termination. Id. at 11.

On or about March 11, 2015, plaintiff was transferred from HCDC to ESD's Atlantic

Yards Project in Brooklyn. Id. at 12. He had previously expressed interest in being transferred
there, and he elected to make the transfer permanent, rather than temporary. Id. at 13. In this

new position, he retained his job title, duties, responsibilities and salary, and, as a practical
bonus, his commute was significantly improved. Id. Indeed, plaintiff remains, by all

appearances described in the record, happily employed there and does not contend that the
transfer constituted an "adverse" action. Id. Interestingly, Lynch has not identified any

economic damages as a result of the investigation into his behavior or his transfer to Atlantic
Yards. In fact, he concedes that he has no economic damages. Id. at 13-14.
Standard of Review

A federal district court must grant summary judgment when, construing the evidence in

the light most favorable to the non-moving party,"there is no genuine dispute as to any material
fact and the [moving party] is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a);
Williams v. Annucci, 895 F.3d 180, 187(2d Cir. 2018). The moving party bears the burden of

"identifying those portions of'the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,' which it believes demonstrate the

absence of a genuine issue of material fact." Sentry Ins. v. Brand Mgmt. Inc.^ 120 F. Supp. 2d

111,284(E.D.N.Y. 2015). When assessing the merits of a summary judgment motion,a distric^
court cannot "try issues offact, but rather [must]'determine whether there are issues offact to

be tried.'" S. W. ex rel. Marquis-Abrams v. City ofNew York,46 F. Supp. 3d 176, 188(E.D.N.jY"
2014)(quoting Sutera v. Schering Corp., 73 F.3d 13,16(2d Cir. 1995))(emphasis original).

Not all facts, however, are material. A fact is material only if it "might affect the

outcome of the suit under the goveming law." Anderson v. Liberty Lobby, Inc., 106 U.S. 242,
248, 106 S. Ct. 2505,2510, 91 L. Ed. 2d 202, 211 (1986). For a dispute over material facts to be

"genuine," the evidence must be "such that a reasonable jury could return a verdict for the
nonmoving party." Id. Assertions of fact, moreover, must be supported by citations "to

particular parts of materials in the record, including depositions, documents, electronically storesd
information, affidavits or declarations, stipulations...,admissions, interrogatory answers, or
other materials." Fed. R. Civ. P. 56(c)(1)(A).

In opposing a motion for summary judgment,the nonmoving party "may not rely solely
on 'conclusory allegations or unsubstantiated speculation' in order to defeat" the motion. S. W.

ex rel. Marquis-Abrams,46 F. Supp. 3d at 188. The nonmoving party "must do more than
simply show that there is some metaphysical doubt as to the material facts.... [T]he

nonmoving party must come forward with specific facts showing that there is a genuine issuefor
triair Kindle v. Dejana,238 F. Supp. 3d 353(E.D.N.Y. 2017)(emphasis original). "Where it
clear that no rational finder offact 'could find in favor ofthe nonmoving party because the

evidence to support its case is so slight,' summary judgment should be granted." Weiss v. Nat'I
Westminister BankPLC,278 F. Sup. 3d 636,640(E.D.N.Y. 2017)(quoting Gall v. Prudential
Residential Servs., Ltd. P'ship,22 F.3d 1219, 1224(2d Cir. 1994)).

Whether the subject matter be the disposition ofa summary judgment motion or not, in

reviewing a magistrate judge's R&R,a district judge "may accept, reject, or modify,in whole or
in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l).
The district judge need only be satisfied "that there is no clear error on the face ofthe record" to
accept the reviewed R&R,provided no timely objection has been made in writing. Urena v. New

York, 160 F. Supp. 2d 606,609-10(S.D.N.Y. 2001){quotingNelson v. Smith,618 P. Supp. llSp,
1189(S.D.N.Y. 1985));.yee also Thomas v. Arn,474 U.S. 140,150,106 S. Ct. 466,88 L. Ed. 2d

435 (1985). The district judge, moreover, is required to "determine de novo any part ofthe

magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see
also Arista Records, LLC v. Doe 3,604 F.3d 110, 116(2d Cir. 2010). Objections that are

general, conclusory, or "merely recite the same arguments presented to the magistrate judge" do
not constitute proper objections and are reviewed only for clear error. Sanders v. City ofNew
York, No. 12-CV-l 13(PKC)(LB),2015 WL 1469506, at *1 (E.D.N.Y. Mar. 30,2015)(citation

omitted). Clear error exists "where, upon a review ofthe entire record,[the districtjudge] is le
with the definite and firm conviction that a mistake has been committed." Saveria JFK, Inc. v.

Flughafen Wien, AG,No. 15-CV-6195(RRM)
(RLM),2017 WL 1194656, at *2(E.D.N.Y. M^i.
30, 2017).
Discussion
I.

Absence of Economic Loss

Defendants' opening argument, that they are entitled to judgment because plaintifffailed
to identify any economic damages resulting from the alleged "retaliation," is a proposition
without legal merit. Not well fleshed out, defendants' brief included a cursory argument

contending merely that plaintiff did not suffer damages. Dkt. No. 37, at 20. This, they say, is
reason enough to award summary judgment. Plaintiff did not respond to defendants' damages

argument in his opposition memorandum,and Judge Scanlon, in her R&R,agreed that plaintiff

had not suffered economic damages but did not delve deeper into the issue. R&R at 13-14.^

^ Lynch's failure to controvert this point alone, of course, would not be sufficient for the entry Of
judgment against him. "Rule 56 does not allow district courts to automatically grant summary

That finding by Judge Scanlon, though, is hardly a roadblock to the ultimate recovery of
damages. A plaintiff can, upon a showing of liability, recover nominal damages,fees and costs
in discrimination cases, even when actual damages are not awarded. See Wiercinski v. Mangia

57, Inc., 787 F.3d 106,116(2d Cir. 2015). If a defendant's liability is established either by way

ofsummary judgment or at trial, the award and amount of any damages would be a question

reserved for the jury. That there is no genuine dispute as to the absence of economic damages
cannot, itself, supply a ground upon which summary judgment may rest.
II.

McDonnell Douslas Framework

Judge Scanlon determined that, under the burden-shifting framework applicable to
discrimination and retaliation claims under Title VII, NYSHRL and NYCHRL,as established i]i

McDonnell Douglas Corp. v. Green,411 U.S. 792,93 S. Ct. 1817, 36 L. Ed. 2d 668(1973),
defend£ints were not entitled to summary judgment. She concluded that there was a genuine
issue of material fact as to whether defendants' post /joc justification for investigating and

punishing Lynch was pretextual. To get to this point, helpfully, right offthe start, defendants
conceded that Lynch was an employee engaged in a protected activity {i.e. filing a discrimination

complaint)and that his employer was aware ofthat activity, but they contested whether Lynch
suffered a "materially adverse action" and whether there was a causal connection between the

protected activity and the adverse action. R&R at 23. Judge Scanlon determined that"a jury
could reasonably conclude that Ms. Gordon's filing of complaint against Plaintiff was a

materially adverse action" and that Lynch's protected activity was a "but for" cause of that
action. Id. at 23-31.

judgment on a claim simply because the summary judgment motion, or relevant part, is
unopposed." Jackson v. Fed. Exp.,766 F.3d 189, 194(2d Cir. 2014).

She also found, however, that defendants had offered evidence that the adverse action

was "filed for nonretaliatory reasons, namely, that Plaintiff had refused to follow her
instructions; that he had not produced requested work; and that he had subjected her to

discrimination because she was a black Caribbean female in a position of authority over him."

Id. at 31. Relevant to this Court's consideration ofthe R&R,Defendants "take no issue with thfe
Magistrate Judge's analysis up to this point." Defs. Objs., Dkt. No. 57, at 3. Defendants,
instead, focus exclusively on the third and final McDonnell Douglas subject of inquiry: pretext.

See Abrams v. Dep't ofPub. Safety^ 764 F.3d 244, 251 (2d Cir. 2014)(plaintiff under McDonnell
Douglas framework has burden to establish that "defendant's reason is in fact pretext for
unlawful discrimination"). Where, as here,"the defendant has articulated a non-retaliatory

reason for the employment action," the plaintiff must"come forward with evidence that the

defendant's proffered, non-retaliatory reason is a mere pretext for retaliation." Kwan v. Andalex
Grp., LLC,737 F.3d 834, 845(2d Cir. 2013). Pretext can be established by "demonstrating
weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered
legitimate, nonretaliatory reasons for its action." Id. at 846.

Judge Scanlon determined that a triable issue offact exists as to whether defendants'
justification for investigating and punishing Lynch was pretext, based on the facts that(1)

Gordon mentioned Lynch's complaint in her own complaint and (2)Lynch was punished for
misogynistic behavior, which he claims was commonplace among co-workers who were not also
punished. See R&R at 36. Defendants object that neither ofthese should preclude summary
judgment here. They first contend that Gordon's mention of plaintiffs complaint does not
establish "but-for" causation because, as Judge Scanlon acknowledged, showing that Gordon

was driven by both "retaliatory and non-retaliatory motives ... would not be sufficient for

Plaintiff to prove his claim." M at 33 n.l 1. It is plain, however,that Judge Scanlon was merely
rephrasing the standard that governs here: whether an unlawful "motive to discriminate was one
of the employer's motives, even ifthe employer also had other, lawful motives that were

causative in the employer's decision." Univ. ofTexas Sw. Med. Ctr. v. Nassar^ 570 U.S. 338,
343,133 S. Ct. 2517,2523,186 L. Ed. 2d 503 (2013).

Defendants add that Judge Scanlon acknowledged that Lynch had failed to demonstrate

weaknesses, implausibilities, inconsistencies or contradictions in Gordon's purportedly
legitimate reasons for filing her complaint. Defs. Objs. at 5; see also R&R at 34. Lynch
responds that defendants did not raise the issue of but-for causation in their summary judgment
brief and that, in any event, it becomes relevant "in the third stage of the McDonnell Douglas"
framework. PI. Objs., Dkt. No.61, at 6.

Even crediting plaintiffs argument on causation, however, he cannot overcome the

glaring absence of record evidence sufficient to create a genuine dispute that Gordon's persona

complaint about him was not pretextual. Plaintiff places great stock in the "implausibility" of el
supervisor filing a complaint of discrimination against her subordinate for non-retaliatory
reasons. Id. at 13("[T]he very notion of[it]... beggars belief.... Not only was Gordon's

complaint implausible because she was the manager and plaintiffthe subordinate, but it is
nonsensical on its face."). Defendants protest the idea that Lynch was singled out for

punishment for misogynistic behavior because of his complaint. They argue that he was

ultimately punished for language like calling Gordon a "bitch" and that Gordon's complaint
never mentioned that word -in other words, he was punished for conduct unearthed and entire
distinct from that raised in Gordon's complaint. See Defs. Objs. at 9(arguing plaintiff is not

"similarly situated to the unidentified other [unpunished] employees" because his punishment

was based on "the findings of the independent investigator").

To be sure, Judge Scanlon recognized that, under ordinary circumstances, the
investigation and probationary status of Lynch could lead to an inference of retaliation. See
R&R at 37(record evidence "seems to imply a difference between [Lynch's] conduct and
treatment and that of the West Indian 'clique' who did not complain about Ms. Gordon"). And,

because "a plaintiff need only show that the defendant was in fact motivated at least in part by
the prohibited discriminatory animus," Henry v. Wyeth Pharm., Inc.^ 616 F.3d 134, 156(2d Cir
2010), and because Gordon's colleagues may have used the same type of language for which he

was punished and they were not, there might- absent more- have been a triable issue of fact

relating to pretext. But, Lynch's effective acknowledgement ofthe misogynistic behavior and
his factually unsupported assertion that his co-workers do it without penalty do not create a
genuine issue of material fact.

A critical additional fact in this case, however, also weighs heavily against Lynch. The

alleged "retaliation" against Lynch was not the result of discipline his supervisor sought to
impose but, rather, the complaint of another employee entitled to the protection ofthe same
rights that Lynch said Gordon violated as to him. Her complaint was not seeking to advance

ESD's disciplinary system but to vindicate her personal rights under law. Gordon,in other

words, had a right to file her complaint, and ESD had an obligation to investigate her charge of
discrimination. That Gordon is also a supervisor does not deprive her ofthose rights or
vindication of a claim that a co-worker has violated them."^

Contextually, on this record, this was a case oftwo employees asking their mutual

Indeed, it is compelling that Gordon eschewed disciplining Lynch for his conduct on her own
authority as his supervisor. Instead, she pursued a process that triggered an independent
investigation of her complaint, making the hill Lynch had to climb to show pretext even steeper
10

employer to resolve claims that the other had committed acts of discrimination in violation of
law. See Littlejohn v. City ofNew York, 795 F.3d 297, 318(2d Cir. 2015)(prohibition on

employer discriminating against employee '"because [s]he has opposed any practice made an

unlawful employment practice by this subchapter,' does not distinguish among entry-level
employees, managers, and any other type of employee")(internal citation omitted). Nothing

requires "a freakish rule protecting an employee who reports discrimination on her own initiative
but not one who reports the same discrimination in the same words when her boss asks a
question." Crawford v. Metro. Gov't ofNashville & Davidson Cty., Tenn., 555 U.S. 271,27778, 129 S. Ct. 846, 851, 172 L. Ed. 2d 650(2009).

Simply put, Gordon's complaint of discrimination was entitled to the same consideration

Lynch sought in the filing of his complaint, including the right to be free of retaliation for doin;
so. The record shows, without a genuine dispute of material fact, that the "adverse actions"

about which Lynch complains resulted from investigation of Gordon's complaint to their mutual
employer. There is absolutely nothing in the record, moreover, to suggest that the adverse
actions were employer retaliation, other than that Gordon's cross-claim of discrimination
followed his claim against her. The adverse actions were imposed by a mutual employer,

conducting two,independent, unbiased investigations- and no allegation has been made that th(j
investigations were tainted by favoritism or partiality whatsoever. The conclusions ofthose
investigations were that Lynch's misogynistic conduct toward Gordon, which he, principally, d id
not deny,justified her complaint and the discipline imposed; and that Gordon's alleged
discrimination against Lynch was unsubstantiated and, equally important, unactionable.

In short, viewing the record in the light most favorable to Lynch, as the Court must, there

is no genuine dispute over whether legitimate concerns with Lynch's work performance and

11

behavior were pretext for the investigation and probationary status that followed his protected
activity. In the absence of a triable issue of material fact, defendants' motion for summary

judgment must be granted.^
Conclusion

For the foregoing reasons, upon de novo review, the Court adopts Magistrate Judge
Scanlon's R&R,as modified by this Memorandum & Order, as the opinion ofthe Court.
Defendants' motion for summary judgment is granted, and the case is dismissed.
The Clerk of Court is directed to enter judgment accordingly and to close this case.
So Ordered.

Dated: Brooklyn, New York
August 15, 2019

/s/ USDJ ERIC N. VITALIANO
ERICN. VITALIANO

United States District Judge

^ Neither party argues that the Court's analysis should be any different for plaintiffs Title VII
claim than for his § 1981 and NYSHRL claims, which are "analytically identical" to Title VII

claims, or his claim under NYCHRL,which is "broader than Title VII." See R&R at 39-42. I^or
did either party file any objections o Judge Scanlon's conclusion that the outcome for all claimsj
would be the same here. The Court observes, however, that even under the more generous

NYCHRL standard, plaintiff has still failed to satisfy the "lesser burden ofraising an issue as to
whether the action was motivated at least in part by retaliatory animus." Id. at 41. The Court

adopts Judge Scanlon's conclusion that the outcome is the same for all of plaintiffs claims hens,
and, therefore, all claims are dismissed.
12