Cortes v. The City of New York et al

Filing 63

MEMORANDUM OPINION AND ORDER re: 46 MOTION for Summary Judgment filed by The City of New York, Diane Carn, Neil Schulman, New York City Department of Corrections, Richard Palmer, Jr. For the foregoing reasons, Defendant's motion for summary j udgment is granted in its entirety. This Memorandum Opinion and Order resolves docket entry no. 46. The Clerk of Court is requested to enter judgment in favor of Defendants on Plaintiff's federal claims and declining to exercise jurisdiction of Plaintiff's New York City and state human rights law claims, and close this case. (Signed by Judge Laura Taylor Swain on 3/27/2012) (mro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

~

,.~ -

FRANKIE CORTES,
Plaintiff,
No. 08 Civ. 4805(LTS) (RLE)

THE CITY OF NEW YORK et aL,
Defendants.

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MEMORANDUM OPINION AND ORDER

Plaintiff Frankie Cortes, a fonner Corrections Officer with the New York City
Department of Correction ("DOC"), brings this action pursuant to Title VII ofthe Civil Rights
Act of 1964 ("Title VII"), 42 U.S.C. §§ 1981 and 1983 ("Section 1981" and "Section 1983"), the
First and Fourteenth Amendments to the United States Constitution, the New York State Human
Rights Law, codified at N.Y. Exec. Law § 296 ("SHRL"), and the New York City Human Rights
Law, codified at N.Y.C. Admin. Code § 8-101 et seq. ("CHRL"), alleging retaliation and
discrimination on the basis of his gender and race. The Court has jurisdiction of the federal
claims pursuant to 28 U.S.c. §§ 1331 and 1343(a)(3) and (4) and supplemental jurisdiction of
the state law claims pursuant to 28 U.S.c. § 1367. Defendants City of New York, DOC, Diane
Cam, Neil Schulman, and Richard Palmer (collectively "Defendants") now move pursuant to
Federal Rule of Civil Procedure 56 for summary judgment as to all claims. The Court has
considered thoroughly all of the parties' submissions. For the following reasons, the Court
grants Defendant's motion in its entirety.
BACKGROUND

The following facts are drawn from the parties' submissions, and are undisputed
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unless otherwise indicated.! Plaintiff was employed as a Correction Officer ("CO") at the DOC
until his termination on February 22, 2007. (Defs' 56.1 Stmt. ~ 4.) Plaintiff alleges that, on June
21, 2002, while working at the Bronx Criminal Court, he was assaulted by two female COs,
Sadie Smith ("Smith") and Sheena Thompson ("Thompson"). (Id. ~ 5.) According to an internal
investigation report, Smith and Thompson accused Plaintiff of destroying the phone wires in
Smith's post, and both insinuated that he had vandalized Smith's car. (Ex. I, attached to
Declaration of Donna Canfield ("Canfield Decl.").) In his report memorializing the incident,
Plaintiff stated that he had "no idea as to why [the assault] was committed." (Defs' 56.1 Stmt.
~

9.) Shortly after the assault, Plaintiff met with defendant Deputy Warden Neil Schulman

("Schulman") and demanded that Smith and Williams be arrested for assault and abandoning
their post. Schulman directed Plaintiff to make a formal request to defendant Warden Richard
Palmer ("Palmer"). (Id.

~

11.)

On June 21, 2002, Smith and Thompson were suspended. (Id.

~

12.) In his

deposition, Plaintiff claims that they were suspended for five days "even though it should have
been 30 days for conduct unbecoming." (PI's Resp. Stmt. '1122.) A preliminary investigation
recommended that Smith, Thompson, and Plaintiffbe "administratively transferred from [the
Bronx Detention Complex ("BXDC")] in the best interest of the command." (Defs' 56.1 Stmt. ~
14.) On June 26,2002, Palmer referred disciplinary charges against Smith and Thompson for the

Facts characterized as undisputed are identified as such in the parties' statements
pursuant to Local Civil Rule 56.1 or drawn from evidence as to which there is no
nonconclusory, contrary factual proffer. Citations to the parties' respective
S.D.N.Y. Local Civil Rule 56.1 statements ("
56.1 Stmt.") and responses
thereto ("_ 56.1 Resp. Stmt") incorporate by reference citations to the
underlying evidentiary submissions.
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June 21, 2002, assault. (rd. '1\15.) Shortly thereafter, Thompson and Smith were transferred to
the Bernard B. Kerik Center ("BBKC") and the Anna M. Kross Center ("AMKC"), respectively.
(rd. '1\16.) AMKC is not considered a favorable assignment. (Id. '1\19.) On July 10,2002,
Plaintiff was transferred to the Eric M. Taylor Center ("EMTC"), which is considered a favorable
assignment within the DOC. (rd. '1'1\17-18.) While Plaintiff claims he preferred the BXDC, there
is no indication in the record that he made that preference known. (Pl's 56.1 Resp.

,r 19.)

In his Complaint, Plaintiff alleges that Schulman "influenced the decision to
transfer Plaintiff due to his close relationship with [Smith]." (Compi. '1\59.) Plaintiff concedes,
however, that Warden Palmer, not Schulman, made the request on July 8, 2002 that Plaintiff be
administratively transferred. (Defs' 56.1 Stmt. '121.) In a December 2,2002, response to a
Request for Information by an Equal Employment Opportunity (HEEO") investigator, Palmer
explained that he had ordered Smith, Thompson, and Cortes' transfer "to maintain a safe
environment." (Id. '1\31.)
On August 7, 2002, Plaintiff filed an internal EEO complaint alleging that Smith
had retaliated against him for being named as a witness in a previous EEO complaint filed
against her by CO Frank Kumpan ("Kumpan"), and that Schulman had retaliated against him by
ordering him to write a report on whether he was wearing his vest at the time of the assault and
another report addressing an earlier accusation that he was playing loud music on the job, and by
ordering his transfer. (Id. ,r'l\22-25.) Kumpan had filed an EEO complaint on May 25, 2002,
which listed Plaintiff as a witness to an incident of alleged harassment, despite Plaintiffs request
that Kumpan "not ... involve him." (PI's 56.1 Resp.,r 118.) Plaintifftestified that Smith
became aware that Plaintiff was listed as a witness and that, "maybe a month after" the Kumpan

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complaint was filed, Plaintiff began receiving threatening phone calls calling him a "snitch."
(Defs' 56.1 Stm!. 'il28.) Plaintiff does not claim to have informed any of the Defendants about
these messages. (Jd. 'il29.) Plaintiff did not provide testimony or give a statement in the
Kumpan EEO investigation until August 15,2002, almost two months after the assault by Smith
and Williams. (Id. '130.) On March 27, 2003, the DOC EEO office found Plaintiff's claim of
retaliation unsubstantiated and determined that Plaintiff was not unjustly transferred. (Id. 'il32.)
On January 23, 2003, Plaintiff submitted a "Request for Transfer" back to BXDC.
(Td. ,: 34.) On or about March 10,2003, Plaintiff was transferred to the Vernon C. Bain Center
("VCBC"). (Id. 'il36.) Shortly thereafter, Plaintiff filed an internal EEO complaint, alleging that
he had been transferred to VCBC in retaliation for his August 2002 complaint against Smith. (Id.
'137.) DOC records indicate that, at the time of Plaintiff's request, BXDC was not in need of
additional uniformed staff members. (Id. '138.) VCBC is generally considered a preferable
assignment by correction officers. (Id. 'il39.) While Plaintiff asserts that he preferred BXDC
(PI's 56.1 Resp.

'1 39), he has not proffered any evidence that he conveyed that preference to

Defendants. Plaintiff testified at his deposition that, after his transfer to VCBC, Schulman
"accommodated him" by giving him his requested tour and preferred post. (Defs' 56.1 Stmt.
'il40.) On June 18,2003, the DOC EEO office found unsubstantiated Plaintiff's April 4, 2003,
complaint that his transfer to VCBC was retaliatory. (Id. 'il43.)
On April 10, 2003, Plaintiff filed a Charge of Discrimination with the New York
State Division of Human Rights, alleging that Smith retaliated against him for being a witness in
a previous EEO complaint, and that Schulman treated him less favorably than Smith and
Thompson on account of his sex. (Id. 'il41.)

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On July 7, 2003, Plaintiff was designated a "chronic absent," as a result of which
he lost his steady tour and was "put on a wheel." (Id.

'1' 47-52.) DOC guidelines provide that "a

member who reports sick on twelve (12) or more work days within a twelve month period shall
be classified as chronic absent;" they further provide that an individual designated a "chronic
absent" may lose certain discretionary benefits such as the assignment to a steady tour.

Osl '1"

48, 50-51). Although Plaintiff concedes that he was designated a "chronic absent" and deprived
of his discretionary benefits in accordance with the DOC guidelines, he asserts -- without
evidentiary support - that other chronic absentees were not placed on the wheel. (PI's 56.1 Resp.

Plaintiff testified at his deposition that he attempted to appeal his chronic absent
designation, but that Deputy Warden Diane Cam ("Cam") refused to file his appeal. (Defs' 56.1
Stmt.

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53.) Plaintiff claims that he "was informed by Deputy Warden Cam that she was aware

of his litigation ... and [he] took this to mean that he could expect harsh treatment in retaliation
for pursuing th[ e] litigation." (rd.' 54.) Plaintiff also testified that he heard from another
Corrections Officer that Cam had stated, "Officer Cortes, I've got something for his ass."

®

'56.) After being placed on the wheel, Plaintiff told Cam that "I'm not going on the wheel," and
proceeded to call in sick for two months. (rd. "'157-58.)
On April19, 2004, the U.S. Department of Justice sent Plaintiff a Notice of Right
to Sue, and on July 16, 2004, Plaintiff filed an action in this Court against the City of New York
and the New York City Department of Correction. (Id.

"r 42-43.) In February 2005, Plaintiff

once again was designated as a chronic absent. (Id.'1 62.)
On May 3, 2005, Plaintiff was scheduled to undergo a drug test.

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®, 70.)

Shortly before the scheduled test date, Plaintiff falsely claimed that his father had died and made
a request for emergency time. (Id. ~ 64.) That request was denied and Plaintiff was ordered to
report to the Personnel Captain for "official business." (Id." 65.) PI aintiff testified that he
reported to the Personnel Captain, realized he had no uniform, and returned home. (rd.

~

67.)

Once home, he claims to have received a phone call informing him that his "so-called stepfather"
had passed away. (Id. '168.) He flew to Cleveland that day to attend the funeral.

iliL ~ 68.)

After Cam was informed that Plaintiff had missed his toxicology test and that he had a history of
missing such tests, she reviewed Plaintiff's personnel records and discovered that he had
previously lied about visiting his dying father, been written up on charges for failing to submit
documentation verifying his absence, been repeatedly classified as a chronic absent, and been
A.W.O.L. on multiple occasions. (Id.

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70-73.) Cam issued a memorandum stating that

Plaintiff was not to be granted any personal emergency or bereavement time.

iliL ~ 75).

Cam

issued similar memoranda for other Corrections Officers who had claimed excessive emergency
time. (Id.

~

76.)
The Personnel Captain issued Plaintiff a Command Discipline for leaving without

permission on May 3, 2005, and failing to return.

M

'175.) On May 17,2005, Plaintiff was

ordered to report to Cam's office regarding the Command Discipline and again failed to appear.
(Id.

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78.) The same day, Plaintiff submitted a memorandum to Warden Robert Shaw,

complaining that Cam was harassing him by requiring him to submit extra documentation
concerning the death of his "father." (Id.

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79.) Plaintiff also filed a complaint with the DOC

EEO, alleging that Cam discriminated against him by requiring him to submit documentation
verifying his trip to Cleveland and by placing him on the wheel; he alleged that these actions

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were motivated by racial and sexual animus and were in retaliation for his "lawsuit ... against
two black females." (Id. ~ 80.)
On or about May 20,2005, Plaintiff was brought up on administrative charges for
disobeying orders to report, absenteeism, and making false statements about the reasons for his
absence. (Id.

~

82). Plaintiff conceded at his deposition that he had submitted false

documentation regarding his absence on May 3, 2005, and that the funeral he attended was not
his father's or stepfather's. (Id.

~

83.) On June 16,2006, an Administrative Law Judge ("ALl")

found Plaintiff guilty of the charges and suspended him for two months ("OATH decision").
~~

®

86-87.)
A month prior to his suspension, Plaintiff had been charged with giving false and

conflicting testimony during a May 11,2006, OATH appearance relating to an earlier
investigation into Plaintiffs disappearance from the DOC's Health Management Division
("HMO") on September 30,2004, the date of a scheduled toxicology test. (Id.

~

89.) Plaintiff

had testified at the May 11, 2006, OATH proceeding that upon arriving at the HMD, his then­
wife called to inform him that her purse had been snatched, that she was locked out of the house
in the rain with her two-year old granddaughter, and that the dog had run away.

iliL ~ 90.)

Plaintiff testified that he left the HMD to "help her out and get her in the house." (Id). Plaintiff
was not initially disciplined for leaving the HMD because he provided a police report for the
incident. (Id.

~

91.) However, on or about December 6, 2004, a Confidential Assistant at HMD

received a phone call "from an unidentified female who seemed to be crying, claiming CO
Franky [sic] Cortes #2395 forced and beat his wife to lie for him when he was supposed to be
[drug tested]." (Id.,r 92.) Based on this call and discrepancies in his testimony, Charges and

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Specifications were referred against Plaintiff for making false statements. On January 22, 2007,
following a hearing on the charges, an ALJ found Plaintiff guilty. Because Plaintiff had recently
been suspended for sixty days, the ALJ recommended tennination.

W:L ~ 99.)

The DOC

Commissioner adopted the recommendation, and the decision was affinned on appeal. (Id.
'r~ 103,106.)

On November 9, 2007, Plaintiff filed another charge of discrimination
with the Equal Employment Opportunity Commission ("EEOC") based on his tennination,
claiming sex and race discrimination and retaliation. (rd.

~

107.) The EEOC issued a no

probable cause detennination. On or about April 22, 2008, Plaintiff was notified of his right to
sue. (rd. '1108.)
Procedural History
On July 16,2004, Plaintiff filed an action in this Court against the City of New
York, the DOC, Schulman, Palmer, and Smith, asserting various claims of sex and race
discrimination and retaliation. On February 12,2007, by Stipulation and Order of
Discontinuance, Plaintiff dismissed the action without prejUdice. In a letter to the Court, he
signaled his intent to file a new complaint with a claim based on his termination once his
administrative appeals were exhausted. (See Ex CCC, attached to Canfield Decl.) Neither the
Stipulation nor the letter explicitly addressed what impact the discontinuance would have on the
statute oflimitations should Plaintiffre-file his claims. (Id.

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100.) On May 22,2008, Plaintiff

filed the instant Complaint. Plaintiff s first, second, and third causes of action arise out of
Defendants' conduct after July 16, 2004, and respectively rely on Title VII, alleged
constitutional violations, and state law. Plaintiffs fourth, fifth, and sixth causes of action

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accrued prior to that date and rely on the same legal bases.
DISCUSSION

Summary judgment is to be granted in favor of a moving party 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); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,256 (1986) (the moving party bears the burden of establishing that there is no
genuine issue of material fact). A fact is considered material "ifit might affect the outcome of
the suit under the governing law," and an issue of fact is a genuine one where "the evidence is
such that a reasonable jury could return a verdict for the nonmoving party." Holtz v. Rockefeller
& Co. Inc., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson, 477 U.S. at 248). The Second

Circuit has explained, however, that "[t]he party against whom summary judgment is sought ...
'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 issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156,160 (2d Cir. 2002) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio COlp., 475 U.S. 574, 586-87 (1986». Similarly,
"mere conclusory allegations, speCUlation or conjecture" will not suffice to defeat summary
judgment. Cifarelli v.ViIl. of Babylon, 93 F.3d 47,51 (2d Cir. 1996); see also Fed. R. Civ. P.
56(e).
I.

Timeliness of the Claims
Defendants argue that Plaintiffs Sections 1981 and 1983 claims that accrued

prior to May 22, 2005

i.e., three years prior to the filing of the present action

are time barred

by the three-year statute of limitations for constitutional torts. See Jaghory v. N.Y. State Dep't of
Educ., 131 F.3d 326, 331 (2d Cir. 1997). Defendants further argue that all of Plaintiff's Title VII
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claims, excepting the claim based on his February 2007 termination, are untimely because (1)
Plaintiff failed to file the present action within 90 days of receiving his April 19, 2004, right to
sue letter, see 42 U.S.C. § 2000e-5(t)(1), and (2) Plaintiffs remaining claims accrued more than
300 days prior to the November 9,2007, filing of his EEOC charge. See 42 U.S.C.
§ 2000e-5(e); Butts v. New York Dep't ofHous. Preservation & Dev., 990 F.2d 1397, 1401 (2d
Cir. 1993).
Title VII "precludes recovery for discrete acts of discrimination or retaliation that
occurred outside the statutory time period." Nat') R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
105 (2002). Moreover, "each [discrete] discriminatory act starts a new clock for filing charges."
Id. at 113. "A discrete act of discrimination is an act that in itself constitutes a separate actionable
unlawful employment practice and that is temporally distinct." Ledbetter v. Goodyear Tire &
Rubber Co., 550 U.S. 618, 638 (2007) (internal quotation marks and citation omitted). Examples
of discrete discriminatory acts include "termination, failure to promote, denial of transfer, or
refusal to hire." Morgan, 536 U.S. at 114. By contrast, a hostile work environment claim will not
be barred by the statute of limitations if all acts constituting the claim "are part of the same
unlawful employment practice and at least one act falls within the time period." Id. at 122.
Plaintiff argues that all of his pre-July 16, 2004, claims are timely because the
2007 voluntary dismissal of his first action was the product of an agreement, by which defense
counsel agreed that the claims asserted in that action could be reasserted in a subsequent
complaint. He also argues that his Title VII hostile work environment claim is timely because at
last one act

his termination - fell within the statutory period. As explained below, Plaintiff has

failed to adduce evidence that would enable a reasonable jury to find that his termination was the
product of retaliation or discriminatory animus. Thus, the timeliness of the pre-July 16,2004,
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claims hinges on whether the filing ofthe first complaint toned the statute of limitations,
notwithstanding the voluntary dismissal.
In New York, a dismissal without prejudice generally renders the dismissed
action a nullity for statute oflimitations purposes. See Johnson v. Nyack Hosp., 86 F.3d 8, 11
(2d Cir. 1996); Jewell v. County of Nassau, 917 F.2d 738, 740 (2d Cir. 1990). However, in a
letter to the Court accompanying the Stipulation of Discontinuance, Plaintiff's counsel explained
that he planned on adding a claim based on Plaintiff's recent ternlination, and expressed his view
that a discontinuance rather than a stay would better conserve the Court's resources. (Ex. CCC
attached to Canfield Decl.) He further represented:
I have spoken to [the] ... attorney for defendants, who consents and joints in this
request, without admitting any liability on the part of the defendant. Neither party
will be prejudiced if this request is granted, since there was a substantial amount
of discovery which did not take place in this matter, such as depositions.
(ld. (emphasis added).) The Court finds that this letter creates a triable issue of fact as to
whether Defendants intended to waive their statute of limitations defense. Accordingly, the
Court denies the motion for summary judgment insofar as it seeks dismissal of the pre-July 16,
2004, claims as untimely.
However, Plaintiff does not - and cannot

claim that Defendants waived statute

of limitations defenses for claims that accrued after the voluntary dismissal. Therefore,
Plaintiff's Section 1981 and Section 1983 claims that accrued between July 16, 2004, and May
22,2005, are barred by the three-year statute oflimitations. Such claims include those based on
Plaintiff's designation as a chronic absent in February 2005, Cam's May 4,2005, memorandum
denying Plaintiff emergency and bereavement time, and Cam's demand for documentation
verifying his funeral attendance. Likewise, Plaintiff's Title VII claims that accrued between July

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16,2004, and January 13,2007 (i.e., 300 days before he filed his November 9,2007, EEOC
charge) are barred under 42 U.S.c. § 2000e-5(e). Nor can Plaintiff bring a timely Title VII
claim based on the June 2006 disciplinary hearings, which resulted in his two-month suspension.

II.

Title VII Claims

A

Race and Sex Allegations
Plaintiffs claims of race and gender discrimination under Title VII are analyzed

according to the three-step burden-shifting framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Leibowitz v. Cornell University, 584 F.3d 487,498-99 (2d Cir.
2009). First, the employee bears the burden of producing evidence to support a prima facie case
of discrimination. See McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of
race or gender discrimination under Title VII the employee must show that "(1) she was within
the protected class; (2) she was qualified for the position; (3) she was subject to an adverse
employment action; and (4) the adverse action occurred under circumstances giving rise to an
inference of discrimination." Leibowitz, 584 F.3d at 498. Second, if the employee establishes a
prima facie case, the evidentiary burden shifts to "the employer to articulate some legitimate,
nondiscriminatory reason" for the adverse employment action. McDonnell Douglas, 411 U.S. at
802. Third, if the employer articulates a nondiscriminatory reason, "the presumption of
discrimination arising with the establishment of the prima facie case drops from the picture," and
the burden shifts back to plaintiff to show "that defendant's proffered, non-discriminatory reason
is a mere pretext for actual discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d
Cir. 2000). This requires plaintiff to put forward "not simply some evidence, but sufficient
evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by

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the employer were false, and that more likely than not discrimination was the rea) reason for the
discharge." Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996).
Plaintiff alleges that the following are incidents of race and sex discrimination:
(I) his supervisors' refusal to bring criminal charges against Smith and Thompson, or otherwise
sanction them; (2) his transfer from BXDC; (3) his supervisor's request that he write two reports
-- one on whether he was wearing a vest at the time of the June 21, 2002, assault, and a second
regarding an allegation that he had been playing loud music on April 9, 2002; (4) Schulman's
decision to transfer Plaintiffto VCBC despite his request for a transfer to BXDC; (5) Plaintiffs
placement "on the wheel" and loss of steady tour duty; (6) Cam's refusal to appeal Plaintiff s
designation as a "chronic absent"; (7) a memo circulated by Cam stating that Plaintiff was no
longer entitled to bereavement leave; (8) Cam's request for evidence to substantiate Plaintiffs
claim that he was attending the funeral of his father; (9) administrative charges brought against
Plaintiff on May 20, 2005, for making false statements and disobeying orders; and (l0)
administrative charges which resulted in his termination on February 22,2007. 2
Plaintiff has failed to produce evidence to support a prima facie case of
discrimination. First, many of the above incidents do not constitute adverse employment
actions. To be actionable, an action must entail a "materially significant disadvantage with
respect to the terms of [plaintiffs] employment such as termination of employment, a demotion .
. . , a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices ... unique to a particular situation." Cunningham v. N.Y. State
DOL, 326 Fed. Appx. 617, 619 (2d Cir. 2009) (internal citations and quotations omitted).

2

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Incidents (7), (8), and (9) are time-barred. However, as explained below, even if
they were timely, they would fail on the merits.
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Plaintiffs supervisors' refusal to bring criminal charges against Smith and Thompson, the
requests for reports on the assault and allegations of playing loud music, and Cam's request for
documentation to substantiate the reasons for Plaintiffs absence clearly do not meet these
criteria. As to the two transfers, Plaintiff does not contest that the facilities to which he was
transferred were internally viewed as preferable assignments, nor does he allege that the
transfers resulted in any downgrades in pay, rank, prestige, or responsibilities. Plaintiffs
personal preference that he remain at the BDXC

a preference which he does not appear to have

conveyed to anyone - does not transform his transfer into an adverse action. Watson v. Paulson,
578 F. Supp. 2d 554, 563 (S.D.N.Y. 2008) ("A transfer that is truly lateral and involves no
significant changes in an employee's conditions of employment is not an adverse employment
action regardless of whether the employee views the transfer negatively."); Beyer v. County of
Nassau, 524 F.3d 160, 164 (2d Cir. 2008) ("A denial of a transfer may also constitute an adverse
employment action, but we require a plaintiff to proffer objective indicia of material
disadvantage; subjective, personal disappointment is not enough.") (internal quotations omitted).
Furthermore, Plaintiff has proffered no evidence, direct or circumstantial, from
which a fair-minded trier of fact could reasonably conclude that any of the above incidents
whether or not they qualify as adverse employment actions

were the products of discriminatory

intent. His third-hand recounting of Cam's remark that she had "something for his ass" is both
inadmissible hearsay and, at best, demonstrates personal animus - not animus based on race or
sex. See Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (conduct complained of must
occur "because of' plaintiffs membership in a protected class). Defendants, on the other hand,
provide legitimate, nondiscriminatory reasons for each incident. Defendants explain - and
Plaintiff does not contest
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that he was placed on the wheel, pursuant to DOC regulations, due to

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excessive absences; that Cam denied him grievance leave after discovering that he had lied
about prior absences and had a pattern of missing toxicology tests; and that the May 2005
administrative charges were brought because Plaintiff had, in fact, disobeyed orders and made
false statements to supervisors. Plaintiff also concedes all the facts underlying the second set of
administrative charges - including, among other things, that a woman claiming to be his wife
accused him of coercing her into corroborating his story regarding his absence from the HMD,
and that he made numerous false statements during an investigative interview.
The only evidence in the record that Defendants acted in a pretextual,
discriminatory manner is Plaintiffs own speculation. However, "a party cannot create a triable
issue of fact merely by stating in an affidavit the very proposition they are trying to prove."
Hicks v. Baines, 593 F.3d 159, 167 (2d Cir. 2010). Accordingly, the Court will grant
Defendants' motion for summary judgment as to Plaintiffs Title VII sex and race discrimination
claims.
B.

Hostile Work Environment
To state a claim for a hostile work environment in violation of Title VII, a

plaintiff must plead facts that would tend to show that the complained of conduct: "(1) is
objectively severe or pervasive

that is, ... [it] creates an environment that a reasonable person

would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives
as hostile or abusive; and (3) creates such an environment because of the plaintiffs sex [or
race]." Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks omitted).
Put differently, the plaintiff must show that the workplace was "penneated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment." Harris v. Forklift Sys.,
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510 U.S. 17,21 (1993) (internal citation and quotation omitted).
Plaintiff s hostile work environment claim fails for the same reason as his race
and sex discrimination claims. There is no evidence that Plaintiff was the object of intimidation,
ridicule, or insult, much less that any such mistreatment was the product of discriminatory
animus. Defendants have also proffered legitimate, nondiscriminatory reasons for each of the
actions about which Plaintiff complains. Accordingly, the Court will grant summary judgment
as to Plaintiffs Title VII hostile work environment claim.

C.

Retaliation
Like claims of sex and race discrimination, retaliation claims are subject to the

McDonnell Douglas burden-shifting framework. Id. at 1038-39. To establish a prima facie case
of retaliation, an employee must show that (1) he engaged in protected activity under Title VII;
(2) that the employer was aware ofthis activity; (3) that the employer took adverse action
against the plaintiff; and (4) that a causal connection exists between the protected activity and
the adverse action. Kessler v. Westchester County Dep't of Social Servs., 461 F.3d 199, 205-06
(2d Cir. 2006). Title VII's anti-retaliation provision is broadly drawn. See Deravin v. Kerik,
335 F.3d 195,203 (2d Cir. 2003). Section 704(a) of Title VII makes it unlawful to retaliate
against an employee, "because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.c.
§ 2000e-3(a) (emphasis added). The Second Circuit has held that "a close temporal relationship
between a plaintiff's participation in protected activity and an employer's adverse actions can be
sufficient to establish causation." Traglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002)

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(citing Cifra v. General Elec. Co., 252 F.3d 205, 217 (2d Cir. 1998). For mere temporal
proximity to establish causality, however, the intervening period must be "very close." Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).
Tfthe plaintiff establishes a prima facie case, the defendant has the burden of
articulating a legitimate, non-retaliatory reason for the adverse actions, whereupon the burden
shifts back to the plaintiff to introduce evidence disproving the legitimate reason offered by the
defendant. See Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993).
Plaintiff alleges that he was retaliated against on account of his participation in
Kumpan's complaint of race discrimination, and his repeated filing of complaints? The
retaliatory conduct he alleges is the same as that underlying his race and sex discrimination
claims.
1.

Plaintiff s Participation in the Kumpan Complaint

In May 2002, Kumpan listed Plaintiff as a witness, over Plaintiffs objections, to
an incident involving allegedly discriminatory remarks by Smith. In the following weeks,
Plaintiff received harassing phone calls accusing him of being a "snitch" and, in June 2002, he
was assaulted by Smith and Thompson. Plaintiff did not testify or otherwise give any statements
on Kumpan's behalf until August 2002. Defendants argue that, while testifying on behalf of an
EEO complainant is protected activity, being involuntarily listed as a witness is not. Because the
phone calls and the assault occurred before Plaintiff testified, Defendants contend, Plaintiff
cannot establish causality.

3

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Plaintiff also alleges that he was retaliated against for requesting that Smith and
Thompson be arrested. However, he presents no authority showing that such a
request is protected activity under Title VII.
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The Second Circuit has not addressed whether an individual's involuntary
placement on a witness list is protected activity. However, the Circuit has stressed the breadth of
the anti-retaliation clause, which broadly protects an individual who has "participated in any
manner" in a Title VII-related proceeding,4 Deravin v. Kerik, 335 F.3d 195, 203 (2d Cir. 2003)
(declaring that the clause is "expansive and seemingly contains no limitations"), and emphasized
that the clause must be interpreted "in light of Title VII's overall remedial purpose" of ensuring
"unfettered access to Title VII's remedial mechanisms." Deravin v. Kerik, 335 F.3d 195,204
(2d Cir. 2003). Thus, in Deravin, the Circuit declared that even involuntary participation in Title
VII proceedings by an employee accused of sexual harassment qualifies as protected activity.
Id. Two years later, in Jute v. Hamilton Sundstrand Corp., the Circuit held that the anti­
retaliation clause's protections extended to an employee who was named as a voluntary witness
in a Title VII suit, but was never called on to testify. The Circuit reasoned that it "would be
destructive of [the statute's remedial] purpose to leave an employee who is poised to support a
co-worker's discrimination claim wholly unprotected." 420 F.3d 166, 175 (2d Cir. 2005). Based
on the reasoning of these decisions, the Court concludes that the anti-retaliation clause's
protections also extend to individuals placed on witness lists without their consent. It would be
equally destructive to the statute's remedial scheme to permit employers to retaliate freely
against potential witnesses who are in a state of indecision -- especially given that such people
are arguably the most susceptible to retaliatory dissuasion.
However, Plaintiffs claim that the phone calls and assault were retaliatory fails
for a different reason: only "employers," not individuals, are liable under Title VII. Wrighten v.

4

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Glowski, 232 F.3d 119, 120 (2d Cir. 2000). To hold an employer liable under Title VII for
harassment or retaliation by a co-worker, a plaintiff must "prove that the employer either
provided no reasonable avenue for complaint or knew ofthe harassment but did nothing about
it." Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1180 (2d Cif. 1996) (quoting Kotcher v.
Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59,63 (2d Cir.1992)). This standard requires a
plaintiff to show that "(1) someone had actual or constructive knowledge ofthe harassment, (2)
the knowledge of this individual can be imputed to the employer, and (3) the employer's
response, in light of that knowledge, was unreasonable." Duch v. Jakubek, 588 F.3d 757, 763
(2d Cir. 2009). Plaintiff does not claim that he notified anyone about the harassing phone calls.
As for the assault, the record clearly shows that, upon being notified, Plaintiffs supervisors took
immediate action by suspending Smith and Thompson, bringing disciplinary charges against
both, and initiating an investigation which resulted in their transfer to other facilities, at least one
of which was less favorable.
To the extent that Plaintiff alleges that other adverse actions -~, his
designation as a chronic absent in July 2003, his placement on the wheel in November 2003, the
denial ofbereavement leave in May 2004, or the two sets of administrative charges in September
2004 and May 2005

were in retaliation for participating in the Kumpan complaint, Plaintiff

claim likewise fails. He presents no evidence that would enable a jury to find causality, nor
could a jury infer a causal connection from the temporal proximity of those actions to his
participation in the Kumpan complaint. More than a year elapsed between being listed in the
Kumpan complaint and Plaintiffs designation as a chronic absent; approximately two years
passed before he was denied bereavement leave and first brought up on administrative charges.
That is too long a period to support an inference of causality. McCormick v. Jackson, No. 07
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Civ. 7893(JSR), 2008 WL 3891260, at *2 (S.D.N.Y. Aug. 21,2008) ("the overwhelming
majority of cases" reject an inference of causality where more than six months have elapsed
between the protected activity and the adverse action). Moreover, Plaintiff has failed to rebut
Defendant's legitimate, non-retaliatory reasons for the adverse employment actions.

2.

Plaintiffs EEO Charges and Prior Lawsuit

Plaintiff filed EEO complaints on August 7, 2002, April 4, 2003, and April 10,
2003, and a federal lawsuit on July 16,2004. Plaintiff has shown that these were protected acts,
that Defendants were aware of the filings, and that adverse acts followed. The only facts in the
record that remotely support causation, however, are the relatively brief time span (three months)
between the April 2003 complaint and Plaintiffs designation as a chronic absent, and the briefer
time span (two months) between Plaintiffs filing in federal court and the 2005 administrative
charges. Assuming, arguendo, that the temporal proximity is sufficient to establish causation,
Plaintiffs case still founders in the second and third stages of the McDonnell Douglas analysis:
Plaintiff fails to offer any evidence to indicate that Defendants' proffered legitimate, non­
retaliatory reasons for the adverse actions taken against him were pretextual.

III.

Equal Protection, Section 1981, Section 1983/First Amendment, and City and State Law

Plaintiff has failed to meet his burden as to the remaining claims. Plaintiff has
asserted an equal protection claim on the grounds that he was unfairly "singled out" in being
designated a chronic absent, and denied emergency time and bereavement leave. To state an
equal protection claim for selective enforcement, a plaintiff must show that 1) he was treated in a
discriminatory fashion with respect to others similarly situated, and 2) such discriminatory

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treatment was based on "impermissible considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person."
LaTrieste Rest. & Cabaret Inc. v. Yill. of Port Chester, 40 F.3d 587,590 (2d Cif. 1994). Plaintiff
has failed to present any evidence, apart from his own speculation, that he was treated differently
than similarly situated counterparts or that any of the adverse actions taken against him were
motivated by his race or sex.
Since Plaintiff s Section 1981 claims are analyzed under the same McDonnell
Douglas burden-shifting framework as his Title VII claims, they fail for the reasons articulated
above. Hongyan Lu v. Chase lnv. Services Corp., 412 Fed. Appx. 413,418 (2d Cir. 2011).
Plaintiff has failed to oppose Defendants' motion for summary judgment on the
Section 1983IFirst Amendment retaliation claim. The Court therefore deems that claim waived.
In any event, there is no support in the record for the claim. To state a First Amendment
retaliation claim, a plaintiff must show that: "(1) the speech at issue was protected; (2) he
suffered an adverse employment action; and (3) there was a causal connection between the
protected speech and the adverse action." Cotarelo v. Village of Sleepy Hollow Police Dept.,
460 F.3d 247,251 (2d Cif. 2006) (internal quotation marks omitted). Even if the plaintiff
demonstrates these factors, "the defendant can still prevail on a motion for summary judgment if
it can show that it would have taken the same adverse employment action even in the absence of
the protected conduct." Id. Here, Plaintiff has failed to adduce any evidence in support of a
causal connection; Defendants, by contrast, have furnished uncontested evidence showing that
they took adverse actions against Plaintiff for valid reasons wholly unrelated to Plaintiffs
protected activity.

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Finally, in light of the Court's dismissal of Plaintiff's federal claims, the Court
declines to exercise pursuant to 28 U.s.c. § 1367(c)(3) supplemental jurisdiction of the New
York City and state human rights law claims.
CONCLUSION

For the foregoing reasons, Defendant's motion for summary judgment is granted
in its entirety. This Memorandum Opinion and Order resolves docket entry no. 46. The Clerk of
Court is requested to enter judgment in favor of Defendants on Plaintiff's federal claims and
declining to exercise jurisdiction of Plaintiff's New York City and state human rights law claims,
and close this case.

SO ORDERED.

Dated: New York, New York
March 27,2012

~N

United States District Judge

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