Hart v. New York University Hospital Center

Filing 46

OPINION re: 27 MOTION for Summary Judgment filed by New York University Hospital Center. Based upon the facts and conclusions set forth above, the motion of NYUHC for summary judgment dismissing the complaint is granted. (Signed by Judge Robert W. Sweet on 10/7/2011) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------

-- --

-------------

---X

WILLIAM HART, JR.,
Plaintiff,

09 Civ. 5159
OPINION

-against

NEW YORK UNIVERSITY HOSPITALS CENTER,
Defendant.

-- -- -- --- --------- -- -- -X

r·.. ' .

A P PEA RAN C E S:
,-

Pro Se
William Hart, Jr.

2410 8 th Avenue, Apt. #12A
New York, NY 10027

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Attorneys for Defendant
NYU LANGONE MEDICAL CENTER, OFFICE OF LEGAL COUNSEL
One Park Avenue, 16 th Floor

New York, NY 10016

By: Daniel T. Driesen, Esq.

.. _"'_ ""'-.W"'_.

~_.,

..­

Sweet, D.J.

Defendant, NYU Hospitals Center ("NYUHC!! or the
"Defendant!!)

(s/h/a New York University Hospitals Center), has

moved pursuant to Rule 56 of the Federal Rules of Civil
Procedure for a summary judgment motion to dismiss the complaint
brought by plaintiff
"Plaintiffll).

se, William Hart

("Hart" or the

Upon the findings and conclusions set forth

below, the motion is granted, and the complaint is dismissed.

Prior Proceedings

Hart filed his complaint on June 3, 2009 alleging
discrimination, retaliation and denial of reasonable
accommodation.

NYUHC moved to dismiss Hart's claims previously
adjudicated by the New York State Division of Human Rights
("NYSDHR") which motion was granted in an opinion of February 9,
2010 (the "February 9 Opinion"), leaving as Hart's surviving
claim that he was denied a reasonable accommodation and
terminated on or about April 22, 2008 in violation of Title VII
of the Civil Rights Act of 1964 (IiTitle VIlli), 42 U.S.C.

§§

12112, et seq., New York State Human Rights Law (IINYSHRL")
1

I

N.Y.

L
Exec..

§

296 , et seq., and New York City Human Rights Law

(ITNYCHRL"), N.Y.C. Admin. Code

§§

8 107 et seq.

The instant motion was marked fully submitted on June
15, 2011.

The Facts

The facts are set forth in Defendant's Statement of
Local Rules of Civil

Material Facts pursuant to Rule 56.1 of

Procedure, the various affidavits sworn to May 18, 2011 and May
19, 2011 that Plaintiff submitted in support of his Opposition,
the Plaintiff's Statement of Material Fact and Plaintiff's
Opposition of Motion for Summary Motion.

The facts are not

dispute except as noted below.

Hart began his employment with NYUHC on December 23,
1989 as a Building Service Attendant.

Over the course

his

employment, Hart was subjected to disciplinary actions on more
than forty occasions which Hart has asserted were harassment and
the result of bogus disciplinary write-ups.

These disciplinary

actions included five suspensions, two of which were for
insubordination and one for threatening a supervisor which Hart
has asserted were unjustified and the result of
2

lse

accusations.

Hart's performance evaluations frequently found

him to be a sub standard employee.

In the last evaluation of

his performance, issued March 2006, Plaintiff was given a "1,"
the lowest rating

l

which signified that his performance failed

to meet normal expectations and job requirements.

Hart has

asserted that the evaluator was not part of management.

As an incident of his employment 1 Hart was part of a
collective bargaining unit represented by Local 1199 1 SEIU
In addition to the Defendant's

United Healthcare Workers East.

policies, the terms and conditions of Plaintiff's position are
governed by the collective bargaining agreement in place between
the Defendant and the Local 1199

1

SEIU.

Pursuant to the

collective bargaining agreement, vacant positions must be posted
and made available to qualified employees in the bargaining
unit.

To be qualified for a lateral transfer to a non­

promotional position, an employee must have a satisfactory work
record.
eligible

Similarly, the Defendant's policy requires that, to be
l

an employee applying for a vacant position must have

"a satisfactory record of performance

1

attendance and

punctuality. "

In early 2007

1

plaintiff applied for three job

postings within the Building Services Department that would have
3

been lateral transfers from his Building Service Attendant
position.

Two of the positions for which PI

ntiff applied in

January 2007 were runner positions on the day shift.

Hart chose

to withdraw his application for both of these positions.

During

the posting period from February 13, 2007 to February 20, 2007,
Plaintiff also applied for a Temporary Elevator Operator
position on the night shift.

Hart has asserted the pos

ion was

labeled a full time position at the time of his application.
Due to his suspension on February 5, 2007, Hart was passed over
for consideration of this position.

Hart has asserted the

suspension was unjustified because he was under a doctor's care
as a result of a job-related injury from July 19, 2001.

After

rejecting Hart's application, the Department ultimately decided
not to utilize the temporary position that was posted and
instead covered the work using extra hours from other employees.

On February 21, 2007, Hart

ft work on an approved

medical leave of absence due to a preexisting injury that was
covered by Workers' Compensation and was continuously out of
work from February 21, 2007, until his termination on April 22,
2008.

On September 5, 2007, while still out on Workers'

Compensation leave, Plaintiff filed a complaint against the
Defendant (named therein as New York University Medical Center)
with the NYSDHR alleging employment discrimination based on
4

disability, race and retaliation, alleging, inter

ia, unfair

work assignments, job positions, vacations and personal days.
Id.

On February 19, 2008, the NYSDHR issued a Determination and

Order after Investigation dismissing the NYSDHR complaint and
dually-filed EEOC Charge and dismissed Plaintiff's
discrimination and retaliation claims, finding that there was no
probable cause to believe that Defendant had engaged in or was
engaging in the

leged unlawful discriminatory processes.

On

April 15, 2008, the EEOC issued a Dismissal and Notice of Rights
wherein it adopted the findings of the NYSDHR.

While out on his Workers' Compensation Medical Leave,
Hart participated in a basketball referee training program at
the Kips' Bay Boys Club in the Bronx.

Peter Aguilar, Senior

Administrative Director of the Hospital's Building Services
Department ("Aguilar") was assisting in the running of the
program.

In early April 2008, Aguilar observed Hart at the

tryouts sprinting laterally with sudden stops and starts,
repeatedly thrusting his arms in the air, and performing other
strenuous physical actions that are required of basketball
officials.

Hart has asserted that at the Kips' Bay Boys Club,

while in the stands, he observed Aguilar.

Aguilar has asserted

that he approached Hart after the session and noted to Hart that
he appeared to be feeling better and that Hart responded that he
5

had to make sure his family eats and that this was not the
place, but one day they would talk about it.

Hart has asserted

that there was nothing stated about his health or his family.

On April 22, 2008, Hart appeared at the administrative
office of the Building Services Department and sought to meet
with Aguilar.

At the meeting, Hart requested to be returned to
evator Operator position on the night

work and be given the
shift.

Hart admitted that his inquiry was for the position that

he previously applied for and was denied in February 2007 and
that he did not know whether or not the position he inquired
about was vacant on April 22, 2008.

Aguilar informed Plaintiff

that there were no vacant night escort positions, adding that
even if a vacant position existed, Plaintiff was not eligible
for a transfer given his performance and disciplinary history
prior to going on medical leave.

According to Aguilar, Hart

so said he did not have medical clearance to return to work
from his leave.
medical

Hart states that the NYUHC never asked for

earance.

According to Aguilar, Hart became loud and

belligerent, and Aguilar and other witnesses have stated that
Hart threatened Aguilar, warning "you better not come to
Harlem,

II

and shouting,

II

I know where you be at in Harlem and

where you live in Mount Vernon!

According to Aguilar, when

II

asked what Hart meant, Hart responded "youlll see.
6

II

Hart states

that he told Aguilar he would see Aguilar in Mt. Vernon because
his first referee training session was scheduled to be held in
Mt. Vernon that Saturday.

Hart also alleges that, in this

conversation, it was Aguilar who responded with anger and
profanity, prompting Hart to ask if he was being treated in such
a manner because he was black.

According to Hart, Aguilar was

threatening and directed Hart to leave.

According to Aguilar, while leaving, Hart continued to
curse and threaten Aguilar.

Hart testified that he, not

Aguilar, raised the issue of race in the meeting and that
Aguilar never said anything about Plaintiff being black.

Hart

also testified that Aguilar never discussed Plaintifffs
disability, nor could Hart recall if he said anything about his
disability and that he, not Aguilar, spoke of his prior
complaint to the NYSDHR.

Hart speculated that he believed

Aguilar was offended both because
referee

aintiff was taking the same

asses and because Hart told Aguilar about the night

elevator position and the NYSDHR claim.

Hart testified that at

this meeting, Aguilar stated that "your job is here if you want
it."

On April 22, 2008, Aguilar terminated Plaintifffs

employment based on his conduct at the meeting.
asserted this to be untrue.

7

Hart has

Hart was not the first employee Aguilar terminated at
the hospital t and others he has discharged have been disabled
and not disabled t male and female t and were a variety of races
and ethnicit

s.

Aguilar currently employs people who are

disabled; people who have returned from medical and workers'
compensation leaves; and people who have made allegations of
discrimination and retaliation against the Medical Center to the
NYSDHR.

On or about August 12t 2008, Plaintiff filed a new
charge of discrimination with the EEOC.

In addition to

allegations that had been raised in his previously dismissed
EEOC and NYSDHR charges t Hart alleged that he was unlawfully
discharged based on his disability and retaliation.

Hart's EEOC

charge does not allege that his race was a cause of
discrimination.

According to Hartt the charge, by claiming

disability and retaliation t included discrimination.
31

t

On March

2009, the EEOC issued a dismissal and notice of rights

finding that it was unable to conclude that the statutes had
been violated and notified Plaintiff of his right to file suit
in federal court within 90 days.

After his termination t Hart alleges that he looked for
other employment.

However, Hart could not identify any jobs
8

that he did not pursue because of
his purported disability.

leged limitations caused by

According to Hart, his college

igibility was rejected as a result of his termination.

The Discrimination Claim Is Dismissed

This Court has previously held that,ll [a]s a general
rule, Title VII claims may only be maintained in federal court
if they are raised in, or reasonably related to, the allegations
brought before the EEOC or equivalent state agency.

11

Buckvar v.

of New York, No. 98 CIV. 3106(RWS), 2000 WL 274195, at *5
(S.D.N.Y. Mar. 13, 2000).

If a claim is omitted from an EEOC

charge and does not involve the same type of discrimination as
that which was submitted for investigation, the omitted claim
must be dismissed.

See id.; White v. N.Y.C.

05-CV-2064 (RRM) (LB) , 2008 WL 4507614, at *3
2008)

. of Educ., No.
(E.D.N.Y. Sept. 30,

(granting summary judgment on claims of gender

discrimination where only race discrimination was raised in the
EEOC complaint); _S_c_o_t_t ___N ._Y~._C_.__~~______C_o_r r _., No. 04 Civ.
___v . __
__
9638(SHS) (GWG) , 2007 WL 4178405, at *7

(S.D.N.Y. Nov. 26, 2007)

Such an omission, when not reasonably related to the specific
legation actually included in the charge, will be the basis
for dismissal for failure to exhaust.
Civ. 2789, 2010 WL 423105, at *7

Bethea v. Potter, No. 08

(S.D.N.Y. Feb. 5, 2010).
9

On the face of his EEOC charge, Hart only checked the
boxes for "retaliation" and "disabilityll in the section labeled
"Cause of Discrimination Based on."

Plaintiff's type-written

attachment to the charge only references claims arising under
the ADA regarding retaliation, reasonable accommodation and
disability.

Despite acknowledging that the motion to dismiss

successfully eliminated all claims other than those arising from
the April 2008 meeting with Aguilar, Hart devoted much of his
Oppos

ion to challenging his numerous suspensions and

previously adjudicated claims.

Where Hart addressed the issues

of the April 2008 meeting, he fails to prof

evidence from

which a jury could conclude that the stated reason for
termination was pretextual and the real reason was
discrimination or retaliation.

See Fitzpatrick v. The New York

_C_o_r_n_e_l_l_ ___~_., No. 00 Civ. 8594 LAP, 2003 WL 102853, at *8
(S.D.N.Y. Jan. 9, 2003).

He concludes simply that the meeting

itself establishes discrimination.

Although Hart states in

~

50

his affidavit that his EEOC charge "does claim race as one of
the possible causes of discrimination," he provided no factual
evidence to support this claim.

The charge was an exhibit to

the Driesen Affidavit, see Ex. 6, and, on its face,

the charge

and attachment signed by Hart bears no mention of race as a
basis for the alleged discriminatory conduct.
10

Plaintiff cannot

avoid summary judgment with mere conjecture and surmise, Del
Off Track Bett

~~~~~~~~~------------------------~

(2d Cir. 2007).

, 245 Fed. Appx. 42, 43

See also White, 2008 WL 4507614, at *2.

The

discrimination claim is dismissed.

The Accommodation Claim Is Dismissed

To make a prima facie case for denial of a reasonable
accommodation, a plaintiff must show that he was disabled,
qualified for his position, and that the accommodation requested
was reasonable.

McBride v. BIC Consumer Prods.

583 F.3d 92, 97-98 (2d Cir. 2009).

In order to prove disability, a plaintiff must show
that he possessed a physical or mental impairment that
substantially limi
U.S.C.

§

12102(1) (A).

one or more major Ii

activities.

42

Merely having an impairment, however,

does not necessarily make one disabled for purposed of the ADA.
__~_______________ _i_s_a_b_i_l _~_____ , 395 Fed. Appx. 782, 784
D
_
Cir. 2010)

(quoting Toyota Motor Mfg.

(2d

v. Williams, 534 U.S.

184, 195, 122 S. Ct. 681, 151 L. Ed.2d 615 (2002)).

In this

case, Hart was out on a workers' compensation leave when he met
with Aguilar on April 22, 2008.

Shortly before that date,

however, Aguilar observed Hart engaged in physical activity
11

while participating in a referee training program, undermining
ed.

any claim that Hart waSt in fact, di

Moreover, Hart

provided no evidence attesting to his being disabled at the time
of his termination.

Plaintiff provided a doctor's note from one

year before the termination and a social security application
from two years after.

These documents do not satisfy HartIs
was disabled at the time of his

burden of demonstrating that
termination.

If a plaintiff demonstrated that he was disabled under
the applicable statutes

I

he must

so establish that the request

for a transfer as accommodation was reasonable and that a
suitable vacancy existed at the time the request was made.
Jackan v. New York State

't of Lab., 205 F.3d 562, 567 (2d

------------------------------~------------

Cir. 2000); Batlidze v. Harris
86(DLC)

t

Be~ch

L.L.P., No. 05 Civ.

2008 WL 2009385, at *4 (S.D.N.Y. May 8, 2008).

The

burden of production and persuasion both lie with the Plaintiff
for this element of the claim.

Jackan, 205 F.3d at 567-68.

Here, Hart testified that the position he sought as a reasonable
accommodation, night elevator operator, was not posted at the
time he met with Aguilar on April 22t 2008 but was the position
for which he applied and was denied 14 months earlier.

Hart

asserted in his Opposition to Summary Judgment that the position
was not labeled "temporary" and that Defendant's exhibit was
12

"doctored.

II

This assertion is not supported by relevant

evidence, or more importantly, is this contention relevant to
the issue of whether the position was vacant when requested in
April 2008.
(2d

See

. 1986)

v. U.S. Fire Ins. Co., 804 F.2d 9, 11 12

(the existence of disputed facts that are

immaterial to the issues at hand is not an impediment to summary
judgment) .

Finally, Hart must demonstrate that the position
sought must be one for which he was qualified.
F.3d at 98.

McBride, 583

Qualifications include "the requisite skill,

experience and other job-related requirements of the employment
pos

ion.

I!

Id., quoting 29 C.F.R.

§

1630.2(m).

Both the

applicable collective bargaining agreement and hospital policy
require that a prospective applicant for a vacant position have
a satisfactory record in order to be considered.

Hart conceded

that possessing a satisfactory work record is a prerequisite for
transfer under the union contract and hospital pol
conclusorily states that Defendant would
prevent him from transfer.
relied upon

ies, but he

sify accusations to

Such conjecture, however, cannot be

deciding this motion.

See Bickerstaff v. Vassar

College, 196 F.3d 435, 439 (2d Cir. 1999)

("Statements that are

devoid of any specifics, but replete with conclusions, are
insufficient to defeat a properly supported motion for summary
13

judgment").

Thus, even if the position sought by Hart was

vacant (which it was not), his history of disciplinary problems
and performance deficits immediately prior to his medical leave
in February 2007 would render him ineligible for transfer.
Accordingly, Plaintiff cannot satisfy the requirements
reasonable accommodation under the ADA.

a

See Jackan, 205 F.3d at

567-68 (plaintiff must show that he was qualified for the vacant
position sought as a reasonable accommodation) .

For these reasons, summary judgment is granted
dismissing the causes of action concerning the alleged

lure

to provide a reasonable accommodation.

The Claim Of Discrimination And Retaliation Is Dismissed

tIe VII and the ADA prohibit discriminatory
employment practices based on race and disability, respectively.
42 U.S.C.

§§

2000e, et seq.; 42 U.S.C.

§§

12112, et seq.

In the

absence of direct evidence, courts apply the three tier burdenshifting framework established in

_M~c~D~o~n~n~e~l~l~~~. .~~~~~.~v~.

Green, 411 U.S. 792, 793, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973),
and Texas

. Affairs v. Burdine, 450 U.S. 248, 252

53, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981), to determine if a
plaintiff has met his burden of proving employment
14

discrimination.

See Brown v. Pension Boards, United Church of

Christ, 488 F. Supp. 2d 395, 405 (S.D.N.Y. 2007).

In this

framework, the plaintiff has the initial burden to establish a
prima facie case of discrimination and, if the defendant
articulates a legitimate, nondiscriminatory reason for the
adverse employment action

l

the burden shifts back to the

plaintiff to prove that defendant's reason is in fact a pretext
for discrimination.

"The question for the court on summary

Id.

judgment is whether the plaintiff's evidence, taken as a whole,
establishes a substantial likelihood that the employer
intentionally discriminated against the plaintiff."

Id. at 405.

Likewise, federal retaliation claims and claims for
discrimination and retaliation under the Human Rights Laws of
New York

ty and New York State are evaluated using the same

analytical framework.

v. N. Y.

erian Medical

Ctr., 593 F. Supp. 2d 659, 665-6 (S.D.N.Y. 2009); Faria v.
Instructional Sys., Inc'

l

259 F.3d 91, 98 (2d Cir. 2001).

The first step of the three-part burden shifting
analysis is that a plaintiff must satisfy his prima facie burden
of proving discrimination by a preponderance of the evidence.
McDonnell
, 411 U.S. at 802 04.
---~----------~---

With respect to the

claims of discriminatory discharge based on disability, a
plaintiff must demonstrate with evidence in the record that he
15

was:

(1) disabled under the statute;

satisfactorily;

(2) performing his job

(3) was discharged; and (4) the discharge took

place under circumstances that give rise to an inference of
discrimination.

rd.; Auguste, 593 F. Supp. 2d at 663-64.

Hart has failed to submit evidence that NYUHC's
decision to terminate his employment for insubordination and
threatening the senior administrative director was in any way
related to his disability or race.

To establish a prima facie

case of discriminatory discharge, a plaintiff must show that he
was terminated "under circumstances giving
of discrimination."
47, 52

(2d Cir. 1998)

se to an inference

v. Buffalo Hilton Hotel, 143 F.3d
To do so, a plaintiff must "produce

direct or circumstantial evidence that would lead a 'reasonable
fact-finder to conclude either .

. that [the Hospital

terminated his employment] because of his [race and/or
disability], or [that the Hospital considered his race and/or
disability] as a negative factor in such consideration."
Passonno v. State Univ. of N.Y. at

----------------------------------------------~

(N.D.N.Y. 1995)

1

889 F. Supp. 602, 607

(citations omitted); see also Memnon v. Clifford

Chance US, LLP, 667 F. Supp. 2d 334,340 (S.D.N.Y. 2009)

("To

survive summary judgment under this analysis, a plaintiff must
adduce sufficient evidence for a reasonable fact finder to
conclude that she established her prima facie claim of either
16

discrimination or retaliation.").

Hart testified that Agui

never spoke of his race or disability at the April 22, 2008
meeting, but rather it was Hart who raised these issues:

Q.
A.

Q.
A.
Q.
A.

Did he say anything to you about being black?
No.
In so many ways I was puzzled why I was
getting this way. And I said, I1Why am I getting
treated this way?"
I might have said black.
"Is
it because I'm black?"
But he didn't say it's because you're black?
No, I asked him.
Did
say anything to you about your disability?
No.

Driesen Aff. Ex. 1 (Dep. of Pl. Tr.), p. 72:13 25.

Plaintiff further speculated that Aguilar was offended because
Hart was taking the same referee

asses.

Although Aguilar was

not actually taking the class, Hart believed that Aguilar was
upset because Hart was trying to be a basketball off

ial.

Such

speculation is wholly insufficient to withstand summary
judgment.
Cir. 1985)

v. Gen. Motors

=-----------~

., 758 F.2d 839, 840 (2d

---------------~

(plaintiff may not depend on "mere conjecture or

speculation" to overcome a motion
v. Dacon, 759 F.2d 989, 998

summary judgment) i Meiri

(2d Cir. 1985)

(conclusory

allegations of discrimination are not enough to evade summary
judgment) .

17

Further, Hart has not demonstrated that non-blacks or
non-disabled persons were treated in a more favorable manner.
See Baguer v. _Spanish Broadcasting Sys., Inc., No. 04 Civ.
8393 (RJS) , 2010 WL 2813632, *12 (S.D.N.Y. July 12, 2010)

(court

granted summary judgment dismissing discriminatory discharge
claims where plaintiff did "not offer any specific evidence of
employees outside his protected class being treated more
favorably than him on account of his [protected class] II) .
Aguilar's unrebutted affidavit states that both disabled and
non-disabled employees and people of various races have been
terminated.

Lastly, Hart's claim of discriminatory intent is
undercut by his own testimony.
told him at the meeting,
Something to that effect.

II

Plaintiff testified that Aguilar

'Your job is here if you want it.'
'Your job is here. '."

Hart has

failed to establish that the legitimate, non-discriminatory
explanation proffered by Aguilar was pretextual and that he was
motivated by discrimination or retaliation.
Abramson, 232 F.3d 83, 88 (2d Cir. 2000)
Worldwide, Inc., 282 Fed. Appx. 26, 28
Plaintiff testified as follows:

18

i

See Schanabel v.

Henwood v. Unisource

(2d Cir. 2008).

not Aguilar, raised the issue of race in

• Hart,

the meeting.

•

56.2 Stmt. ~ 39 i

Aguilar never said anything about Hart being
black.

Id.

~ 39i

• Aguilar never discussed Hart's disability.

Id. ~

40;

• Hart did not recall saying anything about
disability either.

~ 40i

Id.

• Hart, not Aguilar spoke of his prior complaint to
the NYSDHR.

Id.

~

41;

• Hart's NYSDHR claim had already been dismissed
for no probable cause at the time of the meeting.
Id.

~

43;

• Aguilar stated to Hart that "your job is here if
you want it.1I

Id.

~

44.

In fact, Hart's testimony reflects that he had no idea as to why
he was allegedly being treated hostilely
was puzzled why I was getting this way?
getting treated this way?'
because I'm black?'"
72:16-19.

IIIn so many ways I
And I said,

I might have said black.

'Why am I
'Is it

Driesen Aff. Ex. 1 (Dep. of Pl. Tr.), p.
for Retarded Children

In

Inc., the Second Circuit held that where a decision maker's

19

remarks or conduct are facially neutral
infer

t

the court should not

scriminatory intent, because' [c]hoosing one explanation

over another without more evidence is a matter of speculation."
335 F.3d 60, 65 (2d Cir. 2003).

Even if Hart had established a prima facie case of
race or disability discrimination, the Defendant had a
legitimate, non-discriminatory reason for his termination:
Hart, who had an unsatisfactory disciplinary history, threatened
and cursed at the Senior Administrative
Department when he would not return

rector of the

aintiff to work in a

position that was not vacant, for which Plaintiff was not
qualified, and for which he had already been turned down.

As

this Court held in Bethea v. Potter, such insubordination and
threatening behavior is a legitimate non discriminatory reason
for NYUHC's decision to terminate
WL 423105, at *9-10i see

aintiff's employment.

2010

so, Meiri, 759 F.2d at 997

(plaintiff's usurpation of authority, contravention of
prescribed workplace policies and inability to get along with
her co-workers provided a legitimate nondiscriminatory reason
for her dismissal)

Hills Ctr. for Nurs

i

& Rehabilitation, No. 07 CV-1418 (JS) (ARL) , 2009 WL 2984194, at
*4

.D.N.Y. Sept. 14, 2009)

(granting summary judgment on

discrimination claims noting plaintiff's insubordination as a
20

legitimate nondiscriminatory reason for termination)
v. St. Rose's Home, 234 F. Supp. 2d 326, 333

i

Dorrilus

(S.D.N.Y. 2002)

(granting defendant!s motion for summary judgment finding that
plaintiff's insubordination along with verbal threats and
abusive language to supervisors was a legitimate
nondiscriminatory reason for the adverse employment action) .
Plaintiff has not created a genuine issue of material fact by
putting forth allegations that are contradicted by the
overwhelming weight of the evidence.

See Forde v. Beth Israel

Med. Ctr., 546 F. Supp. 2d 142, 146-47 (S.D.N.Y. 2008)
Ghiradelli v

~~=~~~~~~~~~~~L-~

391 (S.D.N.Y. 2003)

& Servo

i

Inc., 287 F. Supp. 2d 379,

_ _~~~~~~~~~~

(plaintiff's self-serving account that

disputes the clear and unequivocal documentary and testimonial
evidence presented by an employer are insuf

cient to create

genuine issues of material fact to avoid summary judgment).

In

Forde, the court disregarded the allegation by plaintiff that a
meeting did not occur when sworn deposition testimony and seven
affidavits proved that the meeting took place.
at 146-47.

546 F. Supp.2d

Similarly, in this case, the evidence provides

strong support for the fact that Hart was terminated for
legitimate reasons.

Finally, Hart

Is to establish that the explanations

Defendant has provided for terminating Hart are a pretext for
21

discrimination.

As described above,

was Hart, not Aguilar,

who raised the issues of race and disability in their
discussions.

Hart has sought to show pretext by alleging that

he was not insubordinate or threatening.

However, as a matter

of law, his interpretation of his conduct is immaterial.

See

Saenger v. Montefiore Med. Ctr., 706 F. Supp. 2d 494, 509
(S.D.N.Y. 2010)

(granting summary judgment dismissing

discriminatory discharge claims, stating "whether the complaints
against

aintiff were truthful, and whether, if true, they

justify termination, are immaterial disputes ll ) i Duviella v. Jet
Blue

--------""'-­

,353 Fed. Appx. 476, 477 (2d Cir. 2009)

(IlIn a

discrimination case, however, we are decidedly not interested in
the truth of the allegations against plaintiff.

We are

interested in what 'motivated the employer. '"); Graham v.
Island R.R., 230 F.3d 34, 44 (2d Cir. 2000)

(even if plaintiff

could demonstrate that the grounds for his discharge were error,
that showing would not demonstrate that reliance on those
grounds was pretextual).

Courts should not interfere with or

second-guess valid corporate termination decisions.
Costello, 294 F.3d 365, 377 (2d Cir. 2001)

Alfano v.

("federal courts are

not in the business of adjudicating whether employment decisions
are prudent or fair.")

(internal citations omitted)

i

2010 WL 2813632, at *6 ("'a fact-finder need not, and indeed
should not, evaluate whether a defendant's stated purpose is
22

unwise or unreasonable ll ) .

Here, even if Hart were somehow able

to reach the final step in the burden shifting-analysis, he has
not sati

ied his ultimate burden of proving that discrimination

was the real reason for his termination.

With respect to retaliation, a plaintiff is obligated
to show that (1) he engaged in protected activitYi

(2) NYUHC was

(3) NYUHC took adverse action

aware of the protected activi

against him; and (4) a causal connection exists between his
protected activity and the adverse action - i.e., that a
retaliatory motive

ayed a part in the termination decision.

v. Consolo Edison, 220 F. Supp. 2d 241, 248 (S.D.N.Y.
2002).

Hart has not satisfied the second and the fourth

criteria-that NYUHC knew he was engaged in protected activity
and that his termination was motivated by retaliation.

Hart filed a NYSDHR claim over seven and a half months
before his termination.

This claim was dismissed for no

probable cause more than two months before he was fired.
Plaintiff's filing, in and of itself, is too far attenuated in
time to be evidence of retaliatory discharge on April 22, 2008.
s Court found

Bethea, that pro se plaintiff's EEO filing

four months prior to termination was too long to suggest causal
relationship.

2010 WL 423105, at *12; see
23

so Cunningham v.

Consolo Edison, Inc., No. 03 Civ. 3522 (CPS) , 2006 WL 842914, at
*19 (E.D.N.Y. Mar. 28, 2006)

("a passage of two months between

the protected activity and the adverse employment action seems
to be the dividing line").

Further, as set forth more fully

above, Hart's request to be transferred to a non-vacant position
for which he was not qualified and which he was denied 14 months
earl

was not a request for a reasonable accommodation and

therefore should not be considered protected activity.

See

Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th
Cir. 1998)

(to be protected activi ty plaintiff must demonstrate

that "he had a good faith, objectively reasonable bel
he was entitled to the accommodations requested.)

fll that

Moreover,

Hart has not established that his inquiry about the night
elevator position was presented as an accommodation request for
his alleged disability:

Q.
in the conversation that you may have
had with him, did you or he say anything about
you being disabled? A.
I don't recall, Maybe I
said something.
I don't recall all the way .
. II) .

Driesen Aff. Ex. 1 (Dep. of

. Tr.), pp. 73:21-74:2.

Accordingly, absent Plaintiff proving that the inquiry about the
prior job was known to Defendant as being a reasonable
24

accommodation request, his prima facie burden cannot be met.
ted Parcel Servo

See
(10th Cir. 2007)

Inc., 502 F.3d 1176, 1194 95

(granting summary judgment where the record

contained no evidence that the employer believed the request for
reassignment was presented as a request for a reasonable
accommodation) .

Even if Hart's NYSDHR complaint and request to Aguilar
could be deemed protected activity, his retaliation claim still
must fail because he cannot demonstrate a causal connection
between the complaints and his termination.

See, e.g., Meder v.

City of New York, No. 05 CV 919(JG), 2007 WL 1231626, at *6
(E.D.N.Y. Apr. 27, 2007)

(prima facie retaliation case failed

because plaintiff !!proffers no admissible evidence linking the
offending actions to any retaliatory animus!!)
Hollander v. American

i

see also

Co., 895 F.2d 80, 85 86

--------------------------~-----------

(retaliation claim fails because there is no evidence "which
would fulfill the final requirement of a casual nexus between
[plaintiff's] filing of the agency complaint.
adverse action] ").

[and the

As noted above, Hart's allegations regarding

Aguilar's motivations were purely speculative.

On the one hand,

Hart alleged that Aguilar reaffirmed to Plaintiff that his job
was there if he wanted it.
Agui

On the other hand,

alleged that

was the one who got upset and started cursing, but
25

testified that he did not "know for what reason."

Plaintiff

baldly speculated that Aguilar was allegedly upset!

"because

maybe when I said the Division of Human Rights part he got
offended."

Driesen Aff. Ex. 1 (Dep. of Pl. Tr.)! p. 74:12 15.

He also speculated that Aguilar was upset that
trying out to be a basketball referee.

aintiff was

Id. at 43:14-45:22.

Moreover! Aguilar's undisputed affidavit testimony indicates
that other employees have complained to the NYSDHR and continued
to be employed in his department.

Accordingly! Plaintiff's

unsupported assertions are insufficient to establish pretext and
overcome Defendant's legitimate non-retaliatory business reasons
for the discharge.

See Auguste

Bethea! 2010 WL 423105 at *10.

t

593 F. Supp. 2d at 665-66i
The retaliation claim is

dismissed.

26

Conclusion

Based upon the facts and conclusions set forth above,
the motion of NYUHC for summary judgment dismissing the
complaint is granted.

It is so ordered.

New York, NY
October

Z'

2011

ROBERT W. SWEET
U.S.D.J.

27