Pothen v. Stoney Brook University

Filing 112

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court adopts the analysis andrecommendations contained in the well-reasoned and thorough R&R in their entirety. Accordingly, IT IS HEREBY ORDERED that defendant's motion for summary judgment (ECF N o. 98) is granted. The Clerk of the Court shall enter judgment accordingly and close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal.Ordered by Judge Joseph F. Bianco on 8/15/2018. (CM to pro se plaintiff by chambers) (Florio, Lisa)

FILED

IN CLERK'S OFFICE
U.S. DISTRICT COURT e.o.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------- ------------X
STEPHEN POTHEN,

*

AUG lG 2018

*

LONG ISLAND OFFICE

Plaintiff,
ORDER
13-CV-6170 (JFB) (AYS)

-againstSTONYBROOK UNIVERSITY
Defendant.

--------------------------------------------------------X
JOSEPH F. BIANCO, District Judge:

Pro se plaintiff Stephen Pothen Khalil ("plaintiff') commenced this action on November
7, 2013. Pending before the Court is the motion for summary judgment by defendant Stony
Brook University ("defendant" or "Stony Brook") that the Court referred to Magistrate Judge
Anne Y. Shields for a Report and Recommendation.
Plaintiffs second amended complaint 1 asserts claims pursuant to Title VII of the Civil
Rights Act of 1962, 42 U.S.C. §§ 2000e et seq. {"Title VII"), alleging that his former employer,
Stony Brook, discriminated against him on the basis of his race, national origin, color, and
religion, retaliated against him, and created a hostile work environment. (ECF No. 34.) On
September 30, 2016, this Court issued an Order granting in part and denying in part defendant's
motion to dismiss for failure to state a claim. (ECF No. 51.) In that Order, the Court granted the
motion to dismiss with respect to plaintiffs claim for Title VII discrimination as it related to his
termination, but denied the motion with respect to the Title VII discrimination claim based on the
alleged failure to promote, denial of overtime, negative reviews, and receipt of a

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On November 7, 2013, plaintiff filed his first complaint (ECF No. 1), which the Court dismissed on March 21,
2014 (ECF No. 14). On June 26, 2014, plaintiff filed an amended complaint (ECF No. 19), which the Court
dismissed on March 25, 2015, granting plaintiff leave to file one more amended complaint (ECF No. 33). On April
28, 2015, plaintiff filed his second amended complaint (ECF No. 34), which is the operative complaint.

disproportionately heavy workload. (Id at 12-13.) The Court also denied defendant's motion to
dismiss the retaliation and hostile work environment claims under Title VII. (Id. at 13.)
On November 1, 2017, defendant filed a motion for summary judgment with respect to
all claims asserted in the second amended complaint. (ECF No. 98.) Plaintiff submitted an
opposition on December 12, 2017 (ECF No. 100), and defendant replied on December 21, 2017
(ECF No. 101). On April 23, 2018, this Court referred defendant's motion to Magistrate Judge
Shields for a Report and Recommendation. (ECF No. 103.) On July 6, 2018, Magistrate Judge
Shields issued a Report and Recommendation (the "R&R," ECF No. 108) recommending that
the Court grant the motion for summary judgment in its entirety. Plaintiff filed objections to the
R&R on July 19, 2018 ("Plaintiffs Objections," ECF No. 110), and defendant filed a response
on July 24, 2018 ("Defendant's Response," ECF No. 111). The Court has fully considered the
parties' submissions. For the reasons set forth below, after a de novo review, the Court adopts
the well-reasoned and thorough R&R in its entirety.
Standard of Review

A district judge may accept, reject, or modify, in whole or in part, the findings and
recommendations of the Magistrate Judge.

See Deluca v. Lord, 858 F. Supp. 1330, 1345

(S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988). As to those portions
of a report to which no "specific written objections" are made, the Court may accept the findings
contained therein, as long as the factual and legal bases supporting the findings are not clearly
erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 414 U.S. 140, 149 (1985); Greene v. WCI
Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). When "a party submits a timely

objection to a report and recommendation, the district judge will review the parts of the report
and recommendation to which the party objected under a de novo standard of review." Jeffries v.

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Verizon, 10-CV-2686 (JFB)(AKT), 2012 WL 4344188, at *1 (E.D.N.Y. Sept. 21, 2012); see also
28 U.S.C. § 636(b)(l)(C) ("A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.").
Plaintiff's Objections

Plaintiff submitted objections to the Court, in which he asserts that the R&R "considered
some of my complaints, but not all." (Plaintiffs Objections at 1.) In this response, plaintiff
restates many of his claims, and includes portions of his complaint on which he has handwritten
"NC" next to the allegations he believes the Court has not considered. The claims that plaintiff
restates include that plaintiff was reprimanded for taking sick leave, he received counseling
memoranda, defendant failed to promote him, defendant failed to provide him with assistants for
heavy lifting work, his supervisor pushed him and yelled at him, and he was "charge[d]" after he
said that he would bring weapons to work to protect himself, among other claims. (Id. at 1-4.)
The previously asserted claims that plaintiff marked as "NC" include that other coworkers were
subjected to discrimination on the basis of race and religion, his supervisor yelled at him,
"hammered on the table," and called him "stupid" (which he characterizes as "workplace
violence," and which he said other engineers did not experience), this treatment ridiculed him,
made him feel "hunted," made his life miserable, and made him feel inferior to the other
engineers, he was physically overworked and mentally strained, and other, less qualified

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coworkers were promoted over him. (Id. at 5-11.) Plaintiff notes that he was admitted to Mather
Hospital for "mental depression." (Id. at 11.)
As discussed further infra, the R&R fully and correctly addressed each of these claims,
and plaintifrs response fails to raise new arguments that undermine the correct analysis
contained in the R&R.

Analysis
Having conducted a review of the full record and the applicable law, and having
conducted a de novo review of the R&R, the Court adopts the analysis and recommendations
contained in the R&R in their entirety.
As a threshold matter, the R&R notes that, in response to defendant's motion for
summary judgment, plaintiff failed to submit a Counter-Statement of Material Facts, in violation
of Local Civil Rule 56.1. (R&R at 1.) Instead, plaintiff submitted only an opposition that
included attachments with selected portions of defendant's Rule 56.1 statement and exhibits
underlined and annotated with his responses. (Id at 1-2, ECF No. 100.) The R&R notes that
plaintifrs opposition failed to include admissible evidence, but that, in light of plaintifrs prose
status, Magistrate Judge Shields conducted a review of the record to determine (1) if there was
any evidentiary support for plaintifrs assertions of fact and (2) if there were any other material
issues of fact.

(R&R at 2 (quoting Feelings v. St~kes, No. 15-CV-1889 (JPO), 2017 WL

3601241, at *2 n.l (S.D.N.Y. Aug. 21, 2017)).)
Turning to the R&R's analysis of plaintifrs claims, first, the Court agrees with the
R&R' s conclusion that plaintiff's claims based on separate, discrete acts of discrimination and
retaliation that allegedly occurred prior to February 11, 2012 were time-barred. (R&R at 15.)
The R&R discusses the "continuing violation" doctrine (even though plaintiff did not argue that

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this doctrine should apply), under which the limitations period could be extended for certain
claims. (Id. at 13.) The R&R explains that the doctrine is "heavily disfavored" in this circuit
"absent a showing of compelling circumstances" (id at 14 (quoting Kubicek v. Westchester

County, No. 08-CV-372 (KMK), 2009 WL 3702155, at *6 (S.D.N.Y. Oct. 8, 2009))), and
recommends that the Court decline to apply this doctrine to extend the limitations period for
these claims (id at 15). In support of this recommendation, the R&R states that plaintiff "failed
to submit any evidence from which the Court c[ould] infer that a practice or policy of
discrimination occurred that would warrant applying the continuing violation doctrine." (Id)
Among the claims that the R&R concludes are time-barred are those based on allegations that
plaintiff was interviewed but not hired for a position that would have constituted a promotion.
(Id) After conducting a de novo review, the Court concludes that this analysis is correct. 2

The R&R states that, "[a]fter excluding the time-barred claims ... the remaining claims
of discrimination that Plaintiff alleges pertain to unfavorable work assignments, bad reports and
workplace incidents involving his supervisor, Kingsley- i.e., the initial refusal to file an accident
report, not allowing Plaintiff to leave early while allowing others to do so, and workplace
violence." (Id at 16-17.) Thus, the R&R next considers plaintiffs timely discrimination claims,
and concludes that the alleged acts did not constitute adverse employment actions because "none
adversely and materially changed the terms and conditions of his employment." (Id. at 17 (citing

Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008)).) The R&R explains that plaintiff
failed to establish a prima facie case of discrimination (id at 16-18), and, regardless, that

2 The Court also notes that, although the 300-day limitations period may be equitably tolled in "rare and
exceptional" circumstances, Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003)
(citation omitted), plaintiff has failed to state any basis for equitable tolling, and the Court concludes that no such
basis exists in the record. In any event, even if these claims were timely, they would fail for the same reasons that
plaintiffs timely claims cannot survive summary judgment-namely, even construing the evidence most favorably
to plaintiff, no rational jury could find that any of these actions were motivated by discrimination or retaliation.

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defendant offered legitimate, nondiscriminatory reasons for the alleged discriminatory acts (id at
18-19). The R&R states that "[t]here is simply nothing in the record before the Court from
which a reasonable fact-finder could conclude that Plaintiff was discriminated against in any
way," and that defendant is, thus, entitled to summary judgment with respect to plaintiffs
discrimination claims. (Id at 20.)
With regard to plaintiffs hostile work environment claim, the R&R concludes that the
allegations did not rise to the level of severity and pervasiveness necessary to establish such a
claim. (Id at 20-22.) The R&R also concluded, in any event, that no reasonable inference could
be drawn that the alleged harassment was based on plaintiffs status as a member of a protected
class. (Id. at 22.) Finally, the R&R states that plaintiffs retaliation claim fails for the same
reasons as the discrimination claim: plaintiff failed to establish a prima facie case of retaliation
"because he cannot demonstrate any adverse employment action," defendant "articulated
legitimate nondiscriminatory reasons for the actions," and plaintiff "failed to demonstrate
pretext." (Id. at 23.) For these reasons, the R&R also recommends granting summary judgment
to defendant with respect to plaintiffs hostile work environment and retaliation claims. (Id. at
22-23.)
The Court has considered all of plaintiffs objections and concludes, after de novo
review, that they point to no errors in the R&R. Even liberally construing plaintiffs objections,
the Court concludes that plaintiff has not put forward any arguments that address the legal and
factual deficiencies in plaintiffs claims that warrant summary judgment for defendant. Instead,
plaintiff simply argues that the R&R failed to address all of his claims. However, as defendant
correctly points out in response to plaintiffs objections,
[T]he Objections do not identify any admissible evidence as would
create a genuine dispute regarding any material fact with regard to
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Plaintiffs prima facie burden or which would tend to show that
Defendant's proffered reasons for its actions were a pretext for
discrimination or retaliation. Plaintiff simply attaches to the
objections portions of his Second Amended Complaint ... [that]
he feels Magistrate Judge Shields did not consider.
(Defendant's Response at 4.) Further, defendant correctly notes that Magistrate Judge Shields
did, in fact, consider the allegations that plaintiff identified as "NC" (not considered). (Id at 57.) The Court agrees that plaintiff has failed to identify any errors the R&R made in considering
the motion for summary judgment, and that his objections merely "reiterat[e] his subjective
belief that he was wronged." (Id. at 4.) With respect to his discrimination and retaliation claims,
even assuming arguendo that he was able to meet the minimal showing to establish a prima facie
case, no rational jury (even construing the evidence most favorably to plaintiff) could conclude
that the articulated, non-discriminatory and non-retaliatory reasons defendant provided were a
pretext for discrimination based on his race, color, religion, or national origin, or were done in
retaliation for his complaints of discrimination.

Similarly, with respect to his hostile work

envjronment claim, there is insufficient evidence in the record (even construing the record most
favorably to plaintiff) from which a rational jury could find that the alleged conduct rose to the
level necessary to establish a hostile work environment, or that any alleged harassment was
based on his status as a member of a protected class. In short, the Court agrees with the R&R
and grants defendant's motion for summary judgment in its entirety.
Conclusion
In light of the foregoing, after de novo review, the Court adopts the analysis and

recommendations contained in the well-reasoned and thorough R&R in their entirety.
Accordingly,

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IT IS HEREBY ORDERED that defendant's motion for summary judgment (ECF No.
98) is granted. The Clerk of the Court shall enter judgment accordingly and close this case. The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be
taken in good faith and therefore in forma pauperis status is denied for the purpose of any
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

lb l
s/3os.eph

(

F. 13,anco

Jo h F. Bianco
U · ed States District Judge
Dated: August 15, 2018
Central Islip, New York

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