Santana v. City of Ithaca, New York et al

Filing 57

MEMORANDUM-DECISION and ORDER - ORDERED that defendants' motion for summary judgment (Dkt. No. 49) is GRANTED and all claims against Radke and the City of Ithaca are DISMISSED; and it is further ORDERED that the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 11/19/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
RAMON SANTANA,
Plaintiff,

5:12-cv-625
(GLS/ATB)

v.
CITY OF ITHACA, NEW YORK
et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Ramon Santana
Pro Se
604 Spencer Road
Ithaca, NY 14850
FOR THE DEFENDANTS:
Bond, Schoeneck Law Firm
One Lincoln Center
Syracuse, NY 13202
Office of the City Attorney
108 East Green Street
Ithaca, NY 14850
Gary L. Sharpe
Chief Judge

SUBHASH VISWANATHAN,
ESQ.
KRIN M. FLAHERTY, ESQ.

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Ramon Santana commenced this action against
defendants City of Ithaca, New York and Ithaca Building Commissioner
Phyllis Radke, alleging violations of Title VII, 1 42 U.S.C. §§ 1981 and 1983,
and the New York State Human Rights Law (NYSHRL) 2.3 (2d Am. Compl.,
Dkt. No. 22.) Pending is defendants’ motion for summary judgment. (Dkt.
No. 49.) For the reasons that follow, the motion is granted.
II. Background
A.

Facts4
1

See 42 U.S.C. §§ 2000e-2000e-17.

2

See N.Y. Exec. Law §§ 290-301.

3

Santana also initially brought gender-based claims under Chapters 55 and 215 of the
City of Ithaca Municipal Code (IMC). (See generally 2d Am. Compl.)
4

Defendants contend that Santana has not complied with this District’s Local Rule
7.1(a)(3), and urge the court to accept their statement of material facts as true. (Dkt. No. 56 at
3-5.) While the court, at first blush, is reluctant to impose such a disadvantage on a pro se
plaintiff who earnestly endeavored to comply with the rules, after reviewing Santana’s
response, it is clear that he has not cited record evidence to support his “disputed” facts.
Indeed, defendants submitted an L.R. 7.1(a)(3) statement containing seventy-seven
statements of fact, and each fact is properly supported by citations to the record. (Defs.’
Statement of Material Facts (SMF), Dkt. No. 49, Attach. 4, ¶¶ 1-77.) In response, Santana
disputed, in whole or in part, over half of defendants’ statements of fact. (Dkt. No. 55, Attach.
3.) For many of those disputes, however, Santana provides no citation, or simply objects on
the grounds of “hearsay.” (See, e.g., id. ¶¶ 14, 19, 29, 34, 35, 36, 39, 46, 47, 51, 52, 53, 59.)
Several other “disputed” facts for which Santana does provide a citation include citations to
documents that are outside of the record, such as briefs that he filed in connection with earlier
motions, (Dkt. No. 55, Attach. 16), a post-hearing arbitration brief filed in connection with a
grievance that his union filed after his termination, (Dkt. No. 55, Attach. 8), and other

2

In July 2001, Santana, a Hispanic male, began his employment with
the City. (Defs.’ Statement of Material Facts (SMF) ¶ 1, Dkt. No. 49,
Attach. 4.) In April 2004, Santana applied for a permit clerk position in the
City’s Building Department; along with his application, he submitted a
completed questionnaire, on which he voluntarily identified himself as
Hispanic. (Id. ¶¶ 2, 3, 4; Dkt. No. 49, Attach. 1 at 20.) Radke interviewed
Santana and the other applicants, and ultimately made the decision to hire
Santana on a provisional basis. (Defs.’ SMF ¶ 5.) At the end of Santana’s
probationary period, Radke recommended that Santana be retained as a

unauthenticated documents, (see, e.g., Dkt. No. 55, Attach. 7 at 1-29, 33; Dkt. No. 55, Attach.
11 at 12-23, 26). (See, e.g., Dkt. No. 55, Attach. 3 ¶¶ 16, 17, 22, 24, 26, 30, 31, 33, 37, 40, 41,
42, 43, 50, 54, 55, 57, 63, 68, 75); see also Fed. R. Civ. P. 56(c)(1)(A); N.D.N.Y. L.R. 7.1(3)
(defining the record for purposes of the statement of material facts as including the pleadings,
depositions, answers to interrogatories, admissions and affidavits). Moreover, the few citations
to documents produced by defendants do not actually support, or are irrelevant to, the grounds
on which Santana disputes defendants’ stated facts. (Dkt. No. 55, Attach. 3 ¶¶ 18, 25, 28, 45,
58, 64.) Further, also in his response to defendants’ statement of material facts, Santana often
provided additional facts, but either does not provide a corresponding citation to the record, or
provides a citation that does not support his statement. (See, e.g., id. ¶¶ 23, 26.)
Although Santana made an effort to comply with L.R. 7.1(a)(3), he has failed to dispute
facts based on admissible record evidence. Accordingly, after searching the record itself, and
finding no evidentiary support for Santana’s disputed facts, the court accepts defendants’
statement of material facts as true. See N.Y. Teamsters Conference Pension & Ret. Fund v.
Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding grant of summary
judgment where “[t]he district court, applying Rule 7.1(a)(3) strictly, reasonably deemed
[movant’s] statement of facts to be admitted” because the non-movant submitted a responsive
Rule 7.1(a)(3) statement that “offered mostly conclusory denials of [movant’s] factual
assertions and failed to include any record citations”); Osier v. Broome Cnty., 47 F. Supp. 2d
311, 317 (N.D.N.Y. 1999) (deeming admitted all facts in defendants’ Rule 7.1(a)(3) statement
where “plaintiff submitted thirteen pages of purported facts without any indication where those
facts can be located in the record”). Nevertheless, where necessary and relevant, the court
addresses certain of Santana’s disputed facts, and the documents cited in support thereof.

3

permanent permit clerk, evaluated his performance as “outstanding,” and
gave him a perfect evaluation score. (Id. ¶ 6; Dkt. No. 49, Attach. 1 at 2425.)
1.

Promotion to Housing Inspector

In July 2006, Santana applied for a promotion to the position of
housing inspector. (Defs.’ SMF ¶ 7.) Housing inspectors are responsible
for inspecting rental properties within their assigned territory, identifying
housing code violations, conducting re-inspections to determine whether
violations have been remedied, and issuing certificates of compliance to
property owners. (Id. ¶ 10; Dkt. No. 49, Attach. 1 at 27-28.) Again, Radke
interviewed Santana for the position, made the decision to hire him, and
eventually appointed him as a permanent housing inspector. (Defs.’ SMF
¶¶ 8, 9.)
Santana, along with two other housing inspectors, William Holtkamp
and Gary Checksfield, was responsible for the more than 11,000 rental
units in the City, which includes single and two-family dwelling units,
multiple dwelling units, fraternity and sorority houses, and dormitories. ( Id.
¶¶ 12, 14.) For inspection purposes, the City is divided into three
territories—west, east, and Cornell University—and each territory contains
4

approximately the same number of rental units. (Id. ¶ 15.) The east and
west territories are composed of roughly the same number of single, twofamily, and multiple dwelling units, while the Cornell territory contains many
fraternity and sorority houses and dormitories. (Id. ¶ 16.) Santana was
assigned to the west territory. (Id. ¶ 17.)
2.

Performance Issues Throughout 2009 and 2010

Beginning in 2009, Santana’s job performance began to deteriorate.
First, in January 2009, in violation of the City’s Vehicle Usage Policy,
Santana drove his City vehicle to his home during working hours to check
on his children, but then fell asleep, and remained at home for
approximately three hours. (Id. ¶¶ 20-22; Dkt. No. 49, Attach. 3 at 16-18.)
Radke informed Santana that this conduct was unacceptable and sent the
wrong message to City residents. (Defs.’ SMF ¶ 23.) Also in early 2009,
Gino Leonardi, Santana’s direct supervisor, learned that Santana was not
promptly notifying property owners of code violations or timely responding
to inquiries from property owners, resulting in delays in generating
certificates of compliance. (Id. ¶ 24.) Leonardi also noticed that Santana

5

often had stacks of property files in his office and was disorganized. 5 (Id. ¶
25.) Leonardi spoke with Santana about these issues, and both Leonardi
and Radke had a counseling session with him, specifically to discuss his
unsatisfactory job performance and their expectations for improvement; the
conversation was summarized in a counseling letter from Radke to
Santana. (Id. ¶¶ 26-27; Dkt. No. 49, Attach. 1 at 39-40.) Soon thereafter,
Radke wrote another counseling memo to Santana regarding his failure to
comply with policy regarding obtaining approval before taking
compensatory time. (Defs.’ SMF ¶ 28; Dkt. No. 49, Attach. 1 at 42-43.)
Throughout the rest of 2009, Radke and Leonardi had two more
counseling sessions with Santana regarding his poor performance and lack
of improvement; specifically, he was not completing his work in a timely
manner, was not inspecting a sufficient number of units, and was making
an inordinate number of errors. (Defs.’ SMF ¶¶ 30, 32.) Indeed, many of
these meetings and discussions were prompted by letters written by
property owners voicing dissatisfaction and frustration with Santana’s
delays; one property owner explained that Santana’s delay in issuing a
5

While Santana attributes the delays and backlog to faulty software and defendants’
unreasonable refusal to grant him compensatory time, which would permit him to make up
work on Saturdays, he fails to cite any admissible evidence supporting this argument. (Dkt.
No. 55, Attach. 3 ¶ 25; Dkt. No. 55, Attach. 16 at 8.)

6

certificate of compliance was causing him to “los[e] money” “[w]ith each
day.” (Id. ¶ 29; Dkt. No. 49, Attach. 1 at 46.) Santana was also
underperforming compared to his colleagues: as of June 30, 2009,
Santana had inspected only 340 units, while Holtkamp and Checksfield had
inspected 1,183 and 691 units, respectively. (Defs.’ SMF ¶ 35; Dkt. No. 49,
Attach. 1 ¶ 21.) Santana’s subpar performance throughout 2009—which
included canceling inspections, failing to show up for other inspections or
issue certificates of compliance in a timely fashion, leaving work for several
hours without any explanation, and making multiple errors in his inspection
reports—resulted in a formal letter of reprimand issued in December 2009.
(Defs.’ SMF ¶¶ 31, 37-42, 46; Dkt. No. 49, Attach. 1 at 48-54.)
Beginning at the end of 2009, and continuing into 2010, Leonardi
began meeting with Santana on a weekly basis to review the status of
Santana’s housing inspections and to confirm that he was properly entering
information into his Groupwise calender and Filemaker program. (Defs.’
SMF ¶ 45.) During these meetings, Leonardi discovered that Santana’s
inspection reports were riddled with errors, which delayed the issuance of
certificates of compliance. (Id. ¶ 46.) In February and March 2010, Radke
and Leonardi again met with Santana, along with his union representative,
7

to discuss Santana’s continued performance deficiencies, articulate and
explain their expectations, and devise a plan for improvement. ( Id. ¶ 48;
Dkt. No. 49, Attach. 1 at 58-64.) After failing to show improvement, Radke
issued a notice of discipline to Santana on June 14, 2010, and fined him
the equivalent of four days of pay. (Defs.’ SMF ¶¶ 51-52; Dkt. No. 49,
Attach. 1 at 66-69.) The notice of discipline explained that, despite the
established goal that eighty percent of Santana’s inspection reports contain
no errors or omissions, Santana’s success rate was only between twentytwo and forty-three percent. (Dkt. No. 49, Attach. 1 at 67.)
Following the June 2010 notice of discipline, Radke and Leonardi
began to notice that an unusually high percentage of units that Santana
inspected were identified as having no violations, and they suspected that
Santana was conducting less thorough inspections so that he could
expedite the process, and avoid the additional time and paperwork
associated with citing violations and re-inspecting properties. (Defs.’ SMF
¶¶ 56-58.) Leonardi then began accompanying Santana on housing
inspections, and noticed that Santana often missed visible code violations,
or cited violations that were not actually violations. (Id. ¶¶ 59-62.) These
errors, along with Santana’s non-responsiveness, resulted in complaints
8

from property owners. (Id. ¶¶ 63-64.) One such complaint was from a
property owner who was attempting to sell her deceased mother’s home;
the property owner explained that Santana failed to return telephone calls,
mailed information to the wrong address, provided inaccurate information,
lied to her, and was unprofessional in his communications with her. ( Id. ¶
64; Dkt. No. 49, Attach. 1 at 71-73.) The letter of complaint concluded with
the property owner stating that Santana “total[ly] lack[ed] . . . customer
service skills as well as . . . knowledge of the codes.” (Dkt. No. 49, Attach.
1 at 73.)
3.

Santana’s Administrative Leave and Termination

In August 2010, Radke placed Santana on paid administrative leave.
(Defs.’ SMF ¶ 67.) While Santana was on administrative leave, Radke
conducted inspections of several properties that Santana had previously
inspected, and for which he reported no violations. (Id. ¶ 68.) In
conducting these investigations, Radke found multiple visible violations.
(Id.) In September 2010, Radke issued a final notice of discipline to
Santana, which terminated his employment. (Id. ¶ 69; Dkt. No. 49, Attach.
1 at 77-83.) After a two-day arbitration hearing, the arbitrator concluded
that Santana’s termination was supported “with unequivocal and
9

substantial evidence” and that Santana was terminated for “just cause.”
(Defs.’ SMF ¶¶ 71, 74; Dkt. No. 49, Attach. 1 at 89-112.)
Santana filed an administrative charge with the Equal Employment
Opportunity Commission (EEOC) on September 7, 2011. (Dkt. No. 49,
Attach. 3 at 57.) Thereafter, the EEOC issued a right to sue letter. (Dkt.
No. 1, Attach. 1 at 8.)
B.

Procedural History
Santana commenced this action on April 12, 2012. (See generally

Compl., Dkt. No. 1.) Thereafter, defendants filed a pre-answer motion to
dismiss, (Dkt. No. 23), which was granted in part and denied in part, (Dkt.
No. 27). Specifically, the court dismissed Santana’s gender-based claims,
which he brought pursuant to Chapters 55 and 215 of the City of Ithaca
Municipal Code (IMC), and Santana’s claims against Radke in her official
capacity. (Dkt. No. 27.) Following joinder of issue, (Dkt. No. 29),
defendants moved for summary judgment, (Dkt. No. 49). That motion is
currently pending before the court.
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
10

standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

Title VII Claims
First, defendants contend that Santana’s Title VII claims must be

dismissed for lack of subject matter jurisdiction because Santana failed to
file a timely EEOC charge. (Dkt. No. 49, Attach. 5 at 4.) In response,
Santana argues that his EEOC charge was timely filed under the
continuing violation theory. (Dkt. No. 55, Attach. 4 at 6-8.) The court
agrees with defendants.
In New York, “a plaintiff must file administrative charges with the
EEOC within 300 days of the alleged discriminatory acts to comply with the
statutory period set by 42 U.S.C. § 2000e-5(e)(1).” MacDonnell v. Liberty
Cent. Sch. Dist., 115 F. App’x 489, 490 (2d Cir. 2004) (citing Elmenayer v.
ABF Freight Sys., Inc., 318 F.3d 130, 133 (2d Cir. 2003)). Under the
continuing violation exception, however, “a plaintiff who files a timely EEOC
charge about a particular discriminatory act committed in furtherance of an
ongoing policy of discrimination extends the limitations period for all claims
11

of discriminatory acts committed under that policy even if those acts,
standing alone, would have been barred by the statute of limitations.” Id. at
490-91 (internal quotation marks and citation omitted).

Here, the last alleged racially discriminatory act, Santana’s
termination, occurred on September 30, 2010. (Defs.’ SMF ¶ 69; Dkt. No.
49, Attach. 1 at 77-83.) On September 7, 2011, some 342 days later,
Santana filed his administrative charge with the EEOC. (Dkt. No. 49,
Attach. 3 at 57.) Santana, however, contends that the 300-day period
should be tolled until after the March 28-29, 2011 arbitration proceeding,
because the arbitrator selection process constituted sex discrimination and
“violated [his] right to a fair and impartial hearing.” (Dkt. No. 55, Attach. 4
at 6-8.)
First, as defendants point out, (Dkt. No. 56 at 1), “the pendency of a
grievance, or some other method of collateral review of an employment
decision, does not toll the running of the limitations periods.” Cherry v. City
of N.Y., 381 F. App’x 57, 58-59 (2d Cir. 2010) (internal quotation marks and
citation omitted). Second, the court has already dismissed Santana’s
gender discrimination claims, and, in doing so, noted that “Santana’s
12

pleading is entirely devoid of any facts which suggest that he was
discriminated against because of his gender.” (Dkt. No. 27 at 11-12.) The
court, therefore, declines to allow Santana’s meritless gender
discrimination claims to save his untimely race discrimination claims. See
Roberts v. Cnty. of Nassau, 140 F. App’x 277, 279 (2d Cir. 2005) (“Discrete
acts of discrimination occurring outside the Title VII limitations period for
filing an administrative complaint are not actionable on the theory that a
different act of discrimination occurred within the limitations period. ” (citing
Nat’l R. R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002)). In
any event, even if Santana’s Title VII claims are not barred, they fail on
their merits for substantially the same reasons that his § 1981, § 1983, and
NYSHRL claims fail, as articulated below.
B.

Discrimination Claims Pursuant to 42 U.S.C. §§ 1981 and 1983,
and NYSHRL
1.

Timeliness

First, defendants contend that Santana’s race discrimination claims
pursuant to § 1981, § 1983, and the NYSHRL are time-barred. (Dkt. No.
49, Attach. 5 at 4-5.) Santana again argues that his previously-dismissed
gender discrimination claims resurrect any otherwise untimely race

13

discrimination claims. (Dkt. No. 55, Attach. 4 at 8.) The court agrees with
defendants that some of Santana’s claims are untimely, but, ultimately, the
facts that support the untimely claims are relevant to the timely claims.
The statute of limitations period in New York for discrimination claims
under § 1983 and the NYSHRL is three years. 28 U.S.C. § 1658(a); see
Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997); N.Y. C.P.L.R. § 214(2).
For § 1981 discrimination claims, the statute of limitations period is four
years. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382-83
(2004). As noted above, discrete discriminatory acts are not actionable if
time-barred. See Morgan, 536 U.S. at 102.
Here, Santana filed his complaint on April 12, 2012. Accordingly, he
may not, under § 1983 and the NYSHRL, recover for any discriminatory
acts that occurred prior to March 13, 2009, and, he also may not, under
§ 1981, recover for any discriminatory acts that occurred prior to March 13,
2008. However, to the extent that any discrete acts are time-barred, they
can still serve as background evidence for Santana’s timely discrimination
claims. See Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 150 (2d Cir.
2012); DeNigris v. N.Y.C. Health & Hosps. Corp., 861 F. Supp. 2d 185,
191-92 (S.D.N.Y. 2012).
14

2.

Merits

In his second amended complaint, Santana alleges that he was
discriminated against on the basis of his race because he was assigned a
greater caseload than were his Caucasian colleagues, denied
compensatory time while his Caucasian counterparts were not,
reprimanded and terminated under unequal disciplinary standards, and
subjected to racially-charged language by Radke and Leonardi. (2d Am.
Compl. ¶¶ 8, 10, 12, 14, 15, 18, 19, 20, 22, 27, 29-31, 32-35, 65-66.)
Defendants contend that Santana’s race discrimination claims fail on their
merits because, even if Santana can establish a prima facie case of
discrimination, defendants have articulated legitimate, non-discriminatory
reasons for disciplining and terminating him, which he has not proven were
pretextual. (Dkt. No. 49, Attach. 5 at 5-20.) Santana responds that his
race discrimination claims are legally sufficient. (Dkt. No. 55, Attach. 4 at
8-17.) The court agrees with defendants.
Claims of employment discrimination brought under 42 U.S.C.
§§ 1981 and 1983, and NYSHRL are subject to a largely identical analytical
framework. See Lore v. City of Syracuse, 670 F.3d 127, 169 (2d Cir.
2012); Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010); see
15

also Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 224-27 (2d Cir.
2004) (articulating differences between Title VII and sections 1981 and
1983). To state a prima facie discrimination claim, the plaintiff must show
that: “(1) he is a member of a protected class; (2) he was qualified for the
position he held; (3) he suffered an adverse employment action; and (4) the
adverse action took place under circumstances giving rise to the inference
of discrimination.” Ruiz, 609 F.3d at 491-92.
“A plaintiff’s establishment of a prima facie case gives rise to a
presumption of unlawful discrimination that shifts the burden of production
to the defendant, who must proffer a legitimate, nondiscriminatory reason
for the challenged employment action.” Woodman v. WWOR-TV, Inc., 411
F.3d 69, 76 (2d Cir. 2005) (internal quotation marks and citations omitted).
If the defendant proffers a legitimate, nondiscriminatory reason for the
challenged employment action, the presumption of discrimination drops out
of the analysis, and the defendant “will be entitled to summary judgment . .
. unless the plaintiff can point to evidence that reasonably supports a
finding of prohibited discrimination.” James v. N.Y. Racing Ass’n, 233 F.3d
149, 154 (2d Cir. 2000).
Ultimately, once the burden shifts back to the plaintiff, he must show,
16

“without the benefit of the presumption, that the employer’s determination
was in fact the result of racial discrimination.” Holcomb v. Iona Coll., 521
F.3d 130, 138 (2d Cir. 2008). The plaintiff must demonstrate “by a
preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination.”
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). This
showing may be made “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of
credence.” Id. at 256; see Tyler v. Bethlehem Steel Corp., 958 F.2d 1176,
1180-81 (2d Cir. 1992). However, conclusory allegations of discrimination
are insufficient to defeat a motion for summary judgment. Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
Here, assuming, without deciding, that Santana has established a
prima facie case of discrimination, it is clear that defendants had a
legitimate, non-discriminatory basis to discipline and eventually terminate
him, namely, his work performance. See Davis v. Avaya, Inc., 295 F. App’x
380, 381-82 (2d Cir. 2008) (noting that “poor performance” constitutes a
legitimate, non-discriminatory reason for termination). Indeed, as
17

discussed at length above, record evidence demonstrates that Santana’s
job performance began to decline in early 2009, and despite Radke and
Leonardi’s efforts to counsel and aide him, he showed no signs of
improvement. (Dkt. No. 49, Attach. 1 ¶¶ 19, 20, at 42-43, 48-54, 58-64, 6669; Dkt. No. 49, Attach. 2 ¶¶ 7-8; Dkt. No. 49, Attach. 3 at 16-18.) From
failing to inspect a sufficient number of units, (Dkt. No. 49, Attach. 1 ¶ 19,
at 49-51), to making multiple errors in his reports, (Dkt. No. 49, Attach. 1 at
67; Dkt. No. 49, Attach. 2 ¶ 8), and generating complaints from property
owners, (Dkt. No. 49, Attach. 1 at 46, 71-73), defendants have
demonstrated that they disciplined and terminated Santana due to his poor
job performance.
Accordingly, the burden rests with Santana to demonstrate, with
record evidence support, that defendants’ stated basis for terminating
him—his work performance—was a pretext, and that the action taken
against him was actually motivated by his race. See Holcomb, 521 F.3d at
138. As an initial matter, at least with respect to his claims against Radke,
establishing pretext is an uphill battle, as Radke made a series of favorable
decisions with respect to Santana’s employment with full knowledge of his
race. (Dkt. No. 49, Attach. 1 ¶¶ 4-7, at 20, 24-25.) Indeed, it was Radke
18

who first hired Santana as a permit clerk, gave him a perfect performance
evaluation, referred to him as an “outstanding employee” while he served in
that position, and recommended that he be retained as a permanent
employee. (Id.) It was also Radke who interviewed and hired Santana for
the position of housing inspector. (Id. ¶ 7.) This evidence undermines any
argument that Radke’s stated reason for disciplining and terminating
Santana—his poor work performance—was pretext for discrimination. See
Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997) (“[W]hen
the person who made the decision to fire was the same person who made
the decision to hire, it is difficult to impute to her an invidious motivation
that would be inconsistent with the decision to hire.”); see also Grant v.
Cornell Univ., 87 F. Supp. 2d 153, 162 (N.D.N.Y. 2000).
Further, while Santana attempts to manufacture a question of fact
with respect to defendants’ real motivation for disciplining and terminating
him, he fails to cite any record evidence to support most of his arguments.
For example, in his memorandum of law, Santana states, without
evidentiary support, that “he was also being spied on by . . . Leonardi, . . .
and other . . . employees,” he was informed by another building inspector
that “executive staff and other Caucasian employees [were] saying bad
19

things about [him],” and “Radke hired a number of minority individuals . . .,
yet disciplines and discharges those very same individuals for . . .
performance issues, while failing to hold Caucasian . . . employees to the
same standards.” (Dkt. No. 55, Attach. 4 at 10, 14-17.) These speculative
and unsupported assertions fail to establish pretext. See Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (finding that a plaintiff must
rebut evidence of legitimate, nondiscriminatory reasons for dismissal with
specific evidence tending to show not only that those reasons were a
pretext, but that unlawful discrimination was the real reason for the
employment decision); Grady, 130 F.3d at 561 (“[T]he creation of a
genuine issue of fact with respect to pretext alone is not sufficient. There
must also be evidence that would permit a rational factfinder to infer that
the discharge was actually motivated, in whole or in part, by
discrimination.” (emphasis added)).
Moreover, although he comes closer, Santana still falls short of
demonstrating pretext by identifying certain remarks made by Radke and
Leondardi that he perceived as racist. (Dkt. No. 55, Attach. 4 at 8-17.)
Specifically, Santana points to three separate incidents. First, Santana
alleges that, in 2008, during a staff meeting, Radke said to Santana, “‘Ray I
20

know how “you people” like to go to Burger King on your breaks, I wouldn’t
want you to get grease on your paperwork.’” (2d Am. Compl. ¶ 15; Dkt. No.
49, Attach. 3 at 49.) Second, Santana claims that, in January 2010, after
he said to Leonardi, “‘Don’t you have an obligation to let me present the
most accurate updated information possible since my performance is being
scrutinized?,’” Leonardi responded, “‘I don’t have an obligation to do
anything for anybody.’” (2d Am. Compl. ¶ 17; Dkt. No. 49, Attach. 3 at 55.)
Third, Santana alleges that, in March 2010, he made modifications to an
order to remedy, and after reviewing his changes, Radke made additional
changes, and wrote “‘POST AS “UNSAFE” THINK!’” (2d Am. Compl. ¶ 21;
Dkt. No. 49, Attach. 3 at 53.)
With respect to these statements, the court appreciates that
seemingly neutral language can be infused with discriminatory animus, see
Lloyd v. Holder, No. 11 Civ. 3154, 2013 WL 6667531, at *9 (S.D.N.Y. Dec.
17, 2013), and phrases such as “‘you people’ . . . could just as easily be
interpreted as [having] a negative racial connotation,” Wooten v.
Reconstruction Home, Inc., No. 5:02-cv-01278, 2005 WL 1502149, at *11
(N.D.N.Y. June 24, 2005), especially when the plaintiff provides “greater
specificity as to the context of [such phrases’] usage,” Griffin v. Ambika
21

Corp., 103 F. Supp. 2d 297, 314 (S.D.N.Y. 2000). Here, however, the
statements made by Radke and Leonardi do not explicitly conjure racial
hostility, and, more importantly, there is insufficient evidence in the record
for a reasonable juror to conclude that these comments were laced with
racism. Indeed, regarding Radke’s Burger King comment, the only context
that Santana provided was that he “interpreted the statement as offensive
to not only Hispanics but any minority,” and, regarding Radke’s written
comment on his order to remedy, Santana stated that he construed it to
mean that “somebody of [his] . . . racial background can’t think for
themselves.” (Dkt. No. 49, Attach. 3 at 49-51, 53.) Regarding Leonardi’s
comment, Santana simply stated that, “a statement like that shows a . . .
lack of accountability as a supervisor towards one of his employees.” ( Id.
at 55.) A plaintiff’s “[feelings and perceptions] of being discriminated
against,” however, “[are] not evidence of discrimination,” and Santana has
otherwise failed to come forth with evidence that lends credence to his
argument that these statements were racially charged. Bickerstaff v.
Vassar Coll., 196 F.3d 435, 456 (2d Cir. 1999) (internal quotation marks
and citation omitted).
Finally, Santana has attempted to demonstrate pretext by arguing
22

that he was assigned a greater caseload than were the Caucasian building
inspectors, and was denied compensatory time to complete his work, while
his Caucasian counterparts were permitted to work on Saturdays. (Dkt.
No. 55, Attach. 4 at 8-17.) First, Santana asserts that he was assigned
more single and two-family residences than the other housing inspectors,
and, therefore, he had to inspect more buildings in order to meet his annual
inspection quota. (Id. at 12-14, 17.) In support of this argument, however,
Santana has failed to cite admissible record evidence, and, further, the
documents that he does cite do not support his argument. For instance,
one unauthenticated document that Santana cited, from what the court can
glean, lists the breakdown of buildings and units for each of the three
territories. (Dkt. No. 55, Attach. 11.) While this document appears to show
that Santana’s territory, the west territory, had the most number of
buildings, that statistic is irrelevant; the Department of State’s housing
inspection expectations are based on the number of dwelling units
inspected, not buildings, (Dkt. No. 49, Attach. 1 ¶ 21), and the document
cited by Santana shows that his territory was not, in fact, comprised of the
most units, (Dkt. No. 55, Attach. 11).
Second, Santana contends that he was denied compensatory time
23

for racially discriminatory reasons, which is further evidence of pretext.
(Dkt. No. 55, Attach. 4 at 9, 12.) This arguement, however, is flawed.
Indeed, the record evidence demonstrates that he was denied
compensatory time because he did not follow the department’s policy when
requesting the time, not because he is Hispanic. (Dkt. No. 49, Attach. 1 at
43.) Moreover, Santana himself submitted a document, which appears to
be an email from Radke to Santana, in which Radke reiterated that
Santana was not following the proper policy for requesting compensatory
time, and also denied his request for compensatory time because, given
his low productivity during the week, she was not confident that he would
accomplish much work, unsupervised, on a Saturday. (Dkt. No. 55, Attach.
5 at 2.)
Accordingly, Santana has failed to demonstrate that defendants’
legitimate, non-discriminatory reasons for disciplining and terminating him
were prextual. At best, he simply disagrees with defendants’ evaluations of
his performance. A plaintiff’s “subjective belief that he was a better
performer than his supervisor believed him to be,” however, “is insufficient
to prove pretext.” Jaiyeola v. Carrier Corp., 562 F. Supp. 2d 384, 390
(N.D.N.Y. 2008), aff’d 350 F. App’x 583 (2d Cir. 2009); Ricks v. Conde
24

Nast Publ’ns, Inc., 92 F. Supp. 2d 338, 347 (S.D.N.Y. 2000) (“The mere
fact that an employee disagrees with h[is] employer’s assessment of h[is]
work . . . cannot standing on its own show that the employer’s asserted
reason for termination was pretextual.”). Defendants, therefore, are
entitled to summary judgment on Santana’s race discrimination claims.
C.

Hostile Work Environment
Santana also claims that he was subjected to a hostile working

environment. (2d Am. Compl. ¶¶ 18, 38, 44-47, 65-66, 80-83, 100-03; Dkt.
No. 55, Attach. 4 at 18-20.) Defendants contend, and the court agrees,
that Santana has failed to meet the standard of establishing a hostile work
environment. (Dkt. No. 49, Attach. 5 at 20-23.)
In order to establish a hostile work environment claim ,
a plaintiff must show that the workplace was so
severely permeated with discriminatory intimidation,
ridicule, and insult that the terms and conditions of
[his] employment were thereby altered. A hostile
working environment is shown when the incidents of
harassment occur either in concert or with a regularity
that can reasonably be termed pervasive. The
plaintiff must show more than a few isolated incidents
. . . , although a hostile work environment can also be
established through evidence of a single incident of
harassment that is extraordinarily severe.
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 723-724 (2d
25

Cir. 2010) (internal quotation marks and citations omitted). In this regard,
the court must not “view individual incidents in isolation,” or “view the
record in piecemeal fashion,” but instead, should consider the “totality of
the circumstances, viewed from the perspective of a reasonable person in
the plaintiff’s position, considering all the circumstances [including] the
social context in which particular behavior occurs and is experienced by its
target.” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012)
(internal quotation marks and citations omitted).
Here, Santana bases this claim on the three allegedly discriminatory
statements made by Radke and Leonardi, discussed above, see supra Part
IV.B.2., and the fact that Radke and Leonardi accused him of altering
records in January 2010. (2d Am. Compl. ¶¶ 18, 38, 44-47, 65-66, 80-83,
100-03; Dkt. No. 55, Attach. 4 at 18-20.) As noted above, the statements
made by Radke and Leonardi are facially neutral, and Santana has offered
no additional record evidence which would allow the court to read these
statements as racially charged. Moreover, even if the court were to
construe Radke and Leonardi’s statements and accusations to be
somehow related to Santana’s race, these isolated incidents do not rise to
the level of a hostile work environment. The Second Circuit has held that
26

for claims of hostile work environment, the plaintiff “must prove more than a
few isolated incidents of racial enmity.” Snell v. Suffolk Cnty., 782 F.2d
1094, 1103 (2d Cir. 1986); see Schwapp, 118 F.3d at 110 (“[I]nstead of
sporadic racial slurs, there must be a steady barrage of opprobious racial
comments.”). Despite Santana’s allegations to the contrary, the record
evidence fails to establish that defendants’ conduct was sufficiently severe
or pervasive to constitute a hostile work environment. Therefore,
defendants are entitled to summary judgment on Santana’s hostile work
environment claim.6
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
49) is GRANTED and all claims against Radke and the City of Ithaca are
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further

6

Given that all of Santana’s remaining claims are either time-barred or fail on their
merits, the court need not address defendants’ argument that Santana has not established any
viable claims against Radke in her individual capacity, (Dkt. No. 49, Attach. 5 at 24-25), and
Santana’s claim that Radke is individually liable under the “aider and abettor” provision of the
NYSHRL, (2d Am. Compl. ¶¶ 102, 114, 115), is dismissed because “liability must first be
established as to the employer/principal before accessorial liability can be found as to an
alleged aider and abettor,” DeWitt v. Lieberman, 48 F. Supp. 2d 280, 293 (S.D.N.Y. 1999).

27

ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
November 19, 2014
Albany, New York

28