Acheampong v. New York City Health and Hospitals Corporation et al
Filing
61
MEMORANDUM OPINION AND ORDER: For the foregoing reasons, Defendants' motion for summary judgment is granted in its entirety. This Memorandum Opinion and Order resolves Docket Entry Number 45. The Clerk of Court is hereby directed to enter judgment in favor of the Defendants and to close this case. SO ORDERED. (Signed by Judge Laura Taylor Swain on 3/25/2015) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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EBENEZER OPUKO ACHEAMPONG,
Plaintiff,
-v-
No. 11CV9205-LTS-SN
NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION et al.,
Defendants.
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MEMORANDUM OPINION AND ORDER
Plaintiff Ebenezer Opuko Acheampong (“Plaintiff”) brings this action against his
former employer, the New York City Health and Hospitals Corporation (“HHC”),
Generations+/Northern Manhattan Network, Harlem Hospital Center (“Harlem Hospital” or the
“Hospital”), Dr. John Palmer (“Dr. Palmer”), Yvonne Reynolds (“Reynolds”), Laureen
Goodridge-Smith (“Goodridge-Smith”) and Herman Smith (“Smith” and collectively,
“Defendants”),1 alleging that he was discriminated against, retaliated against and subjected to a
hostile work environment2 on the basis of his disability, age, national origin, race and skin color
in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq.; Title VI of the
1
The Complaint also names as defendants Clay Omowale, who was never served,
and the City of New York. In his opposition papers to the instant motion practice,
Plaintiff withdraws his claims against both. (See Pl. Opp. at pp. 1, 32.)
2
Plaintiff does not specifically articulate claims for retaliation or hostile work
environment as enumerated causes of action in his Amended Complaint, but as the
factual allegations in the Amended Complaint and the parties’ briefing on this motion
assume that Plaintiff raises such claims, the Court also treats Plaintiff as having raised
them.
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Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.; Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq.; 42 U.S.C. § 1983 (“Section 1983”); and the New York State Human
Rights law, N.Y. Exec. Law §§ 296 et seq. (“NYSHRL”).3 Plaintiff asserts that Defendants
discriminated against him by, inter alia, failing to promote him, suspending him and, eventually,
terminating his employment.
Defendants have moved for summary judgment, arguing that many of Plaintiffs’
claims are time-barred or procedurally barred and, as to the remainder, that Defendants are
entitled as a matter of law to judgment in their favor. The Court has jurisdiction of this action
pursuant to 28 U.S.C. §§ 1331 and 1367. For the following reasons, Defendants’ motion for
summary judgment is granted in its entirety.
BACKGROUND4
From September 8, 2003, to 2011, Plaintiff, a black Ghanaian immigrant who is
at least sixty-four years of age, was employed as a Level I Computer Aide by HHC at Harlem
Hospital. (Def. 56.1 St. ¶¶ 1, 5, 7; Pl. 56.1 Counter St. ¶ 1.) Approximately one year before he
began working at HHC, Plaintiff was hit on the head with a baseball bat and lost hearing in both
3
Plaintiff also asserts a claim of “harassment” under the “New York State Civil Rights
Law,” but as there is no such tort of “harassment” and Plaintiff does not explain
himself in his opposition, the Court adopts the Defendants’ analysis and construes the
“harassment” cause of action as a hostile work environment claim under the
NYSHRL.
4
Facts recited as undisputed are identified as such in the parties’ statements pursuant to
S.D.N.Y. Local Civil Rule 56.1 or drawn from evidence as to which there is no
non-conclusory contrary factual proffer. Citations to the parties’ respective Local
Civil Rule 56.1 Statements (“Def. 56.1 St.” or “Pl. 56.1 St.”) incorporate by reference
the parties’ citations to underlying evidentiary submissions. Plaintiff’s Counter
Statement of Facts is referred to using the citation “Pl. 56.1 Counter St.”
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ears as a result. (Pl. 56. 1 St. ¶ 6.) In 2003, Plaintiff was using a hearing aid in his right ear; by
2004 or 2005, Plaintiff had to use hearing aids for both ears. (Def. 56.1 St. ¶¶ 8-9.) HHC knew
from the commencement of Plaintiff’s employment that he had a hearing disability. (Pl. 56.1
Counter St. ¶ 13.)
Plaintiff was assigned to the Nursing Information Service (“NIS”) at Harlem
Hospital, where he used a special telephone to aid his hearing. (Def. 56.1 St. ¶¶ 10-11.)
According to Plaintiff, his primary functions at the NIS were to input overtime data from
authorization sheets and schedules from plan sheets; make changes to schedules; prepare and
print the payroll report; and import data. (Pl. 56.1 St. ¶ 102.) In 2004, Defendant Reynolds, an
African-American woman, became Plaintiff’s immediate supervisor. (Def. 56.1 St. ¶¶ 12-13.)
Defendant Goodridge-Smith, also an African American woman, was the Associate Executive
Director of Nursing and Defendant Reynolds’ supervisor. (Id. ¶¶ 14-15.) In 2004, 2005, 2006,
and 2008, Plaintiff received overall ratings of “satisfactory” on his performance evaluations. (Id.
¶¶ 16-17, 19.)
Facts Relating to Plaintiff’s Failure to Promote Claim
In February 2004, HHC employees were permitted to take a promotion
examination. Their score on this examination was considered in combination with other factors,
including experience and education. (Def. 56.1 St. ¶¶ 72, 73.) Plaintiff took the exam and
received a score of 75 out of 100, which ranked him as number 10 on the list of employees
eligible for promotion, with number 1 as the top-ranked person. (Id. ¶¶ 75-76.) According to
Plaintiff, there was also a policy at the HHC, and at Harlem Hospital, whereby a supervisor
could make a request to promote a candidate for a position or request that an internal candidate
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be promoted within a department. (Pl. 56.1 Counter St. ¶¶ 23-24.) Plaintiff alleges that he gave
his paperwork to his immediate supervisor, Defendant Reynolds, so that she would obtain the
approvals necessary for his promotion. (Pl. 56.1 Counter St. ¶ 25.) On June 21, 2005, Plaintiff
attended a hiring pool and was interviewed by three HHC hospitals with potential vacancies
available for a position at a higher level than the one Plaintiff held. (Def. 56.1 St. ¶¶ 78-80.)
Plaintiff alleges that, while interviewing, he was told that his department head had not sent the
requisite certification documents, which meant that Plaintiff could not be certified for the
positions for which he was interviewing. (Pl. 56.1 Counter St. ¶ 33.) However, Defendants
contend that, at the hiring pool stage, an applicant’s current supervisor does not submit any
paperwork. (Def. 56.1 St. ¶¶ 81-82.)
Plaintiff was not selected for any of the positions for which he interviewed in
June 2005, and does not know who was selected. (Id. ¶¶ 83-84.) After he was interviewed again
in March 2006, he again was not selected, and does not know anyone who was selected. (Id. ¶¶
87-89.) According to Plaintiff, after the 2006 interviews, Plaintiff returned to Defendant
Reynolds to request a letter from Defendant Goodridge-Smith that would certify him for
promotion, and Defendant Reynolds told Plaintiff that Defendant Goodridge-Smith had said that
he should not be promoted because he could not hear. (Pl. 56.1 Counter St. ¶¶ 42-44.)
Defendant Reynolds also allegedly told Plaintiff to speak to Herman Smith and Clay Omowale,
both of whom worked for HHC’s Human Resources department, but, although Plaintiff tried to
meet with Smith, he was unable to do so. (Id. ¶¶ 45-47.)
Plaintiff was notified that there would be a third hiring pool conducted in March
2007, again based on the eligibility list from the 2004 examination. (Def. 56.1 St. ¶ 90.) Before
the hiring pool, Plaintiff met with Omowale, who allegedly told him that someone from Harlem
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Hospital would attend the interviews, which Plaintiff understood to mean that there would be
someone there who could certify him for promotion. (Pl. 56.1 Counter St. ¶¶ 53-54.) Plaintiff
attended the 2007 hiring pool, but was not certified or promoted. (Pl. 56.1 Counter St. ¶¶ 55-58,
Def. 56.1 St. ¶¶ 90-91.)
According to Defendants, Plaintiff’s name was not considered further because,
after the 2007 interview, Plaintiff voluntarily declined to be considered further by deliberately
checking a box on the Notice of Interview form and withdrawing his candidacy. (Def. 56.1 St.
¶¶ 92-93.) Plaintiff contends that he did not decline to be considered for the 2007 openings and
wanted his name kept on the list. (Pl. 56.1 St. ¶¶ 92-93.) Plaintiff later requested that his name
be restored to the list and was notified that his request had been approved and his name restored
on May 9, 2007. (Def. 56.1 St. ¶ 95.) According to Defendants, no appointments to the position
of computer associate (operations), the position for which Plaintiff was applying, were made at
Harlem Hospital – based on the examination that Plaintiff had taken – before the eligibility list
expired on January 12, 2009. (Id. ¶¶ 96-99.)
Facts Relating to Plaintiff’s Retaliation Claim
Plaintiff alleges that he complained informally to Omowale in 2006 that he was
not being promoted because he had a hearing disability. According to Plaintiff, Omowale said
that Plaintiff should not worry and that he would speak with Defendant Goodridge-Smith.
Plaintiff alleges that he heard nothing back from Omowale. (Pl. 56.1 Counter St. ¶¶ 59-62.)
After Defendant Goodridge-Smith refused to write Plaintiff a letter to support his promotion in
2007, Plaintiff went to Defendant Dr. Palmer to lodge a discrimination complaint. (Pl. 56.1 Id. ¶
82.) According to Plaintiff, he told Dr. Palmer’s secretary in September 2008 that his pay was
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being inappropriately docked; that garbage was being left under his desk; that Defendant
Goodridge-Smith was refusing to support his promotion; and that Defendant Reynolds
sometimes called a second person in to witness instructions being given to him because she said
that Plaintiff could not hear. (Pl. 56.1 Counter St. ¶ 83.)5 According to Plaintiff, Dr. Palmer
instructed him in October 2008 to go to Human Resources and, when he went, Defendant
Goodridge-Smith was there with Omowale. (Id. ¶ 86.) Omowale told him that he would
schedule a meeting with Plaintiff and Plaintiff’s union representative. (Id.) Plaintiff contends
that no subsequent meeting took place and that, although he tried to meet with Defendant Dr.
Palmer on two more occasions, he was not given an appointment and never heard anything
further. (Id. ¶¶ 87-89.)
Plaintiff contends that, after he complained to Defendant Dr. Palmer, the
“Defendants ratcheted up their discriminatory acts against him.” (Id. ¶ 90.) Plaintiff states in a
Declaration that one of his co-workers informed him that Defendants were trying to get rid of
him and that the Assistant Director of Nursing told him that “his treatment by his supervisor and
his peers was being done at the behest of Defendant Goodridge-Smith, his Department head.”
(Id. ¶¶ 91-93.) According to Plaintiff, he was frequently derided and mocked because of his
hearing problems during this time period. (Id. ¶ 92.) Defendants point out that Plaintiff
testified, however, that Defendant Goodridge-Smith never made any comments to Plaintiff
directly about his hearing and that he could not recall whether Defendant Reynolds or Defendant
Goodridge-Smith ever made comments to him about his age, race or ethnicity. (See Def. 56.1
St. ¶¶ 25-26; Pl. 56.1 St. ¶ 25.) Defendant Reynolds testified that Plaintiff never complained to
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Plaintiff testified that, on three or four occasions, Defendant Reynolds made
comments to him about his hearing and asked another employee, Baez Shontisa, to
be present when she spoke to Plaintiff. (Pl. 56.1 St. ¶ 23.)
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her about discrimination; and Defendant Goodridge-Smith testified that Plaintiff once
complained to her because he thought that two female staff members were laughing at him, but
when she spoke to the staff members, she concluded that they were not. (Def. 56.1 St. ¶ 106.)
Plaintiff further contends that, after he had complained about not being promoted
and about being treated differently, around mid to late 2008, Plaintiff began to notice that his pay
was being docked. (Pl. 56.1 Counter St. ¶ 67.) According to Plaintiff, he had always had his
completed time sheets signed by Defendant Reynolds, who also gave him copies so that he could
track his own vacation and sick time leave and so that he did not have to request and obtain
approval to take such leave. (Pl. 56.1 Counter St. ¶¶ 68-71.) Plaintiff alleges that, at some point
in late 2008, Defendant Reynolds stopped signing Plaintiff’s time sheets and delegated this
function to Defendant Goodridge-Smith’s secretary, who made changes to Plaintiff’s time
sheets, of which Plaintiff was not given copies so that he could track his time. (Id. ¶¶ 73-78.)
According to Plaintiff, Defendant Reynolds also initially refused to approve Plaintiff taking off
time to attend his mother’s funeral in Ghana around this time, and Plaintiff contends that, after
he returned from his mother’s funeral, he learned that he no longer had direct deposit for his
paychecks. (Pl. 56.1 Counter St. ¶¶ 103-106.) When Plaintiff inquired as to what had happened
with his direct deposit, he was told by a payroll employee that he had been removed from the
system because Defendant Reynolds was trying to fire him, but he was later placed back in the
system after he spoke with the Human Resources labor relations liaison. (Id. ¶¶ 110, 112.)
Plaintiff’s Suspension and Termination
Plaintiff contends that, on or about February 17, 2009, Defendant Reynolds
docked time from him when he had not actually taken any time off and that, when he asked her
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about it, she said it was because he had taken the time. (Pl. 56.1 Counter St. ¶¶ 113-115.)
According to Plaintiff, he then asked Defendant Reynolds for his time sheet so that he could
calculate his own time and asked why she had not given him copies of his time sheets as he had
requested, but she ignored his questions and told him that he could not speak to her. (Pl. 56.1
Counter St. ¶¶ 116-118.) Plaintiff contends that he became very emotional and began to cry, and
Defendant Reynolds picked up the phone and called hospital security. (Id. ¶¶ 119-122.)
According to Defendants, Defendant Reynolds called hospital security because Plaintiff was
screaming at her, had thrown papers on her desk and, as she stated in the disciplinary charges
subsequently served on Plaintiff, she felt that her safety and the safety of her coworkers was at
risk. (Def. 56.1 St. ¶¶ 28-29; Declaration of John S. Schowengerdt (“Schowengerdt Dec.”) Ex.
C, March, 2009 Disciplinary Charges at D00304.) Plaintiff denies that he threatened Defendant
Reynolds. (Pl. 56.1 Counter St. ¶ 122.) However, four staff members submitted statements
describing the incident in support of the disciplinary charges, which confirmed Defendant
Reynolds’ description of the events. (Def. 56.1 St. ¶¶ 31-32; Schowengerdt Dec., Ex. D.)
Harlem Hospital’s police were sent to Plaintiff's office, and escorted him to the hospital labor
relations office, where he was informed that he was being relieved of his duties pending an
investigation into the allegations regarding his behavior and was asked to return all hospital
property. (Def. 56.1 St. ¶¶ 33-34, Pl. 56.1 Counter St. ¶¶ 123-124.)
On March 11, 2009, Plaintiff was served with formal disciplinary charges, which
charged him with engaging in misconduct on February 17, 2009. (Def. 56.1 St. ¶ 36.) On March
19, 2009, through his union representative, Plaintiff executed a settlement agreement with HHC
and accepted a penalty of a thirty-day suspension without pay. (Def. 56.1 St. ¶¶ 37-38.)
According to Plaintiff, his union representative told him that, if he did not sign the thirty-day
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suspension agreement, he would be terminated. (Pl. 56.1 Counter St. ¶ 127.) Plaintiff contends
that, when he returned from his suspension, Defendant Reynolds changed his performance
review from the overall rating of “satisfactory” for the review period of September 8, 2007, to
September 7, 2008, to “less than satisfactory” even though his favorable review had been signed
by all relevant parties several months before.6 (Pl. 56.1 Counter St. ¶¶ 129-133.) Defendant
Reynolds testified that Plaintiff received an unsatisfactory rating because there were many errors
in his work, which had to be revised by others, in the 2008-09 period. (Def. 56.1 St. ¶ 21.)
From April 2009 onward, Plaintiff asserts, his job functions were restricted and he
was only allowed to enter nursing schedules and not do anything with new employee data,
overtime or various reports, and that he was not trained in the new computer system that the
Hospital was using. (Pl. 56.1 Counter St. ¶¶ 134-136, 138-140.) On April 24, 2009, Plaintiff
states, he went to Human Resources to report the harassment that he was experiencing, but
instead of investigating his complaint, Human Resources advised him to speak to a union
representative. (Id. ¶ 137.)
On August 5, 2009, Defendant Reynolds reported to the Hospital police that, the
day before, Plaintiff had approached her from behind when they were alone in a hallway in the
Hospital and, following her closely, had stated “I am going to kill you. I know more about you
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To the extent Plaintiff contends that Defendant Reynolds retroactively changed his
performance rating for the period ending in September 2008, this appears inconsistent
with the documentary evidence. Defendants’ Exhibit AA contains an evaluation for
that period, for which Plaintiff received a “satisfactory” rating. In her deposition
testimony, Defendant Reynolds spoke of Plaintiffs’ problematic job performance
during the 2008-09 period (See Schowengerdt Dec., Ex. I, Reynolds Tr. at 155:1619), and Defendants have submitted an evaluation for that period, for which Plaintiff
received a “below standard” rating. There is no evidence demonstrating that
Plaintiff’s satisfactory rating for the period ending in September 2008 was altered and
any statements to that effect contained in his Declaration (Declaration of Wendy
Pelle-Beer (“Pelle-Beer Dec.”), Ex. U ¶¶ 50-51) are inconsistent with the evidence.
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than you think. I know what you are doing,” and that she had “felt afraid, threatened and
violated” because of Plaintiff's remarks and “was trembling like a leaf.” (Def. 56.1 St. ¶¶ 3940.) Defendant Reynolds did not immediately report the incident to her supervisor, Defendant
Goodridge-Smith, and she never filed a complaint with the New York Police Department or
District Attorney’s Office. (Pl. 56.1 Counter St. ¶¶ 143-144.) That same day (August 5, 2009),
Plaintiff was relieved of his duties pending an investigation into the events of August 4, 2009,
and on August 24, 2009, he was served with disciplinary charges, again for misconduct. (Def.
56.1 St. ¶¶ 43-45.) Following this incident, a disciplinary hearing was held on August 31, 2009,
pursuant to Plaintiff's collective bargaining agreement (“CBA”), at which Plaintiff was
represented. (Id. ¶¶ 46-47.) The conference officer at the hearing determined that Plaintiff had
displayed disruptive behavior and recommended that he be terminated. (Id. ¶¶ 47-48.) Under
the CBA, Plaintiff could accept the officer’s recommendation, pursue the CBA’s disciplinary
process through to arbitration or proceed with a hearing through the Office of Administrative
Trials and Hearings (“OATH”); Plaintiff chose the third option. (Id. ¶¶ 48-50.)
On January 11, 2011, an OATH hearing was held before Administrative Law
Judge (“ALJ”) John B. Spooner. Plaintiff testified and was represented by private counsel at this
hearing and the ALJ found that, considering the contradictions between Plaintiff's testimony and
that of Defendant Reynolds, Defendant Reynolds was more credible. (Def. 56.1 St. ¶¶ 50-59.)
The ALJ also found that, in light of Plaintiff’s deliberate threats, which were “calculated to
either deter Ms. Reynolds from taking some kind of adverse action against or compel her to
provide him with some benefit, such as a promotion,” and Plaintiff's prior disciplinary history,
termination was an appropriate penalty. (Id. ¶ 61.) Following the OATH hearing, HHC adopted
the ALJ’s report and recommendation and Plaintiff was terminated. (Id. ¶ 63.) Plaintiff then
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appealed to the Personnel Review Board (“PRB”), which met on August 17, 2011, to hear his
appeal, where Plaintiff was again represented by counsel. The PRB affirmed the findings of ALJ
including the recommendation that Plaintiff be terminated. (Def. 56.1 St. ¶¶ 65-67.)
Procedural History
Plaintiff alleges that he filed a complaint of discrimination (the “Intake
Questionnaire”) with Congressman Gregory Meeks on August 11, 2009, and that it was received
by the EEOC on August 21, 2009, and assigned Charge No.: 520-2009-04353. (Pl. 56.1 Counter
St. ¶¶ 146-47.) According to Plaintiff, on October 29, 2009, the EEOC requested that Plaintiff
complete a formal Charge of Discrimination form. (Id. ¶ 149.) He filed the Charge form with
the EEOC on November 20, 2009. (See Def. 56.1 St. ¶¶ 108-109.) On August 26, 2011, the
EEOC issued Plaintiff a right to sue letter, notifying him that, after reviewing the case, it had
determined that HHC had legitimate nondiscriminatory reasons for its actions. (Id. ¶¶ 110-11.)
Plaintiff commenced this action on December 2, 2011. (Id. ¶ 112.)
In his Complaint, Plaintiff asserts claims for discrimination, hostile work
environment and retaliation under the ADA on the basis of his disability (Count I); on the basis
of his age and national origin under Title VII (Count II);7 and on the basis of his age under the
ADEA (Count III); a Section 1983 Equal Protection Clause claim alleging discrimination on the
basis of Plaintiff’s race and color (Count IV); a further Section 1983 claim alleging that Plaintiff
suffered disparate treatment based on his race, color and disability and that Defendants’ behavior
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Because Title VII only protects against discrimination on the basis of an “individual’s
race, color, religion, sex, or national origin” and not age, the Court addresses
Plaintiff’s Title VII claim as one of discrimination based on national origin. See 42
U.S.C.S. § 2000e-2 (LexisNexis 2012).
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rose to a level of policy or custom (Count V); a claim alleging discrimination on the basis of
Plaintiff’s race, color, national origin, age and disability in violation of Title VI (Count VIII);8
and claims for discrimination and hostile work environment under the NYSHRL (Count VI;
Count VII).
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). A fact is considered material if “it 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.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011)
(internal quotation marks and citation omitted). The opposing party bears the burden of
establishing a genuine issue of fact by “citing to particular parts of materials in the record.” Fed.
R. Civ. P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). In determining
whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities
and draw all permissible factual inferences in favor of the party against whom summary
judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (internal quotation
marks and citation omitted). However, “[a] party may not rely on mere speculation or conjecture
8
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Age and disability discrimination claims are not cognizable under Title VI. See 42
U.S.C.S. § 2000d (2009) (“[n]o person in the United States shall, on the ground of
race, color, or national origin, . . . be subjected to discrimination under any program or
activity receiving Federal financial assistance”). Therefore, the Court construes
Plaintiff to be raising only a claim for discrimination on the basis of his national
origin, race and/or color under Title VI.
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as to the true nature of the facts to overcome a motion for summary judgment.” Hicks v. Baines,
593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks and citation omitted).
Timeliness and Administrative Exhaustion of Title VII, ADA and ADEA Claims
“In New York, an employment discrimination claim [under the ADA, ADEA, or
Title VII] is time-barred unless the plaintiff first files an EEOC charge within 300 days of the
alleged discrimination.” Kasraie v. Jumeirah Hospitality & Leisure (USA), Inc., No. 12CV8829KBF, 2013 WL 5597121, at *3 (S.D.N.Y. Oct. 10, 2013) (holding that a plaintiff’s federal Title
VII and ADEA claims were time-barred if the charge had not been timely filed within 300 days
of the alleged discrimination); see also Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 32529 (2d Cir. 1999) (for ADA and ADEA claims, the EEOC charge must be brought within 300
days after the alleged discrimination). Defendants argue that Plaintiff’s promotion-related
claims are untimely and that he failed to exhaust his administrative remedies with respect to his
hostile work environment claims.
On August 21, 2009, Plaintiff filed his Intake Questionnaire (the “Intake
Questionnaire”), which he submitted through Congressman Meeks’ Office, with the EEOC and
on November 20, 2009, he filed his Charge of Discrimination (the “Charge”) with the EEOC.
Plaintiff argues that the operative date for timeliness purposes is August 21, 2009, when he
submitted the Intake Questionnaire; Defendants argue that the operative date is November 20,
2009, when the formal Charge was filed. Because such timeliness disputes had arisen with some
frequency in the past, the EEOC modified its Intake Questionnaire in 2008
to facilitate the determination whether such a questionnaire, in any particular
case, constitutes a charge. Specifically, ‘the EEOC has changed the [Intake
Questionnaire] to require a claimant to clearly express his or her intent by
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checking one of two boxes, thereby ‘forc[ing] claimants to decide whether their
questionnaire is a request for the agency to take remedial action, such that courts
can objectively determine whether each questionnaire is a charge of
discrimination or merely a request for further information.
Brown v. City of New York, No. 11CV2915-PAE, 2013 WL 3789091, at *8 (S.D.N.Y. July 19,
2013) (citing Federal Express Corp. v. Holowecki, 552 U.S. 389, 398-99 (2008); quoting LugoYoung v. Courier Network, Inc., No. 10CV3197-RRM, 2012 WL 847381, at *6 (E.D.N.Y. Mar.
13, 2012)). Checking Box 2 on the current form of the EEOC’s Intake Questionnaire, which
authorizes the EEOC “to look into the discrimination” described in the form and describing that
discrimination in detail in the Questionnaire, as the Plaintiff did here, “qualifies as a charge with
the EEOC for timeliness purposes.” Brown, 2013 WL 3789091, at *8-9. Accordingly, the
appropriate date from which to measure the retrospective 300-day period here is August 21,
2009. Thus, unless Plaintiff can demonstrate that there is a basis in the record for a finding of a
continuing violation9 or equitable tolling of the filing period, only his claims based on acts which
occurred between October 25, 2008 and August 21, 2009, or were reasonably related to acts
which occurred within that period, are timely. See, e.g., McGullam v. Cedar Graphics, 609 F.3d
70, 75-76 (2d Cir. 2010) (recovery for “discrete acts of discrimination or retaliation that occur
outside the statutory time period, even if other acts of discrimination occurred within the
statutory time period,” is precluded) (internal quotation marks and citations omitted). A claim
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The Supreme Court has made clear the difference between discrete acts of
discrimination and continuing violations, holding that “[d]iscrete acts, such as
termination, failure to promote, denial of transfer, or refusal to hire are easy to
identify. Each incident of discrimination and each retaliatory adverse employment
decision constitutes a separate actionable ‘unlawful employment practice,’” whereas
ongoing violations like “[h]ostile environment claims are different in kind from
discrete acts. Their very nature involves repeated conduct.” National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002).
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begins to accrue when a plaintiff knew or had reason to know of a discrete act of discrimination.
Delaware State College v. Ricks, 449 U.S. 250, 259-262 (1980).
“[C]laims that the discriminatory acts were part of a continuing policy and
practice of prohibited discrimination,” Valtech v. City of New York, 400 F. App’x 586, 588 (2d
Cir. 2010), may support application of the continuing violation doctrine. However “multiple
incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or
mechanism do not amount to a continuing violation.” Id. at 588-89 (internal quotation marks
and citation omitted). “An allegation of common motivation without some evidence of a
discriminatory policy or scheme is insufficient to demonstrate that the violations were part of a
continuous act of discrimination.” Abato v. New York City Off-Track Betting Corp., No.
03CV5849-LTS-HBP, 2007 WL 1659197, at *10 (S.D.N.Y. June 7, 2007).
Plaintiff was considered for promotion to the title of “Computer Associate
(Operations)” on three occasions – in 2005, 2006, and 2007. Plaintiff declined to have himself
considered for promotion at his last (March 29, 2007), interview, but later requested that his
name be restored to the eligible list, and his request was granted by HHC. Defendants contend
that HHC did not conduct another hiring pool before that list expired on January 12, 2009, and
Plaintiff has produced no evidence to the contrary. Therefore, the last date on which the Plaintiff
was considered for promotion to the title of Computer Associate Operations was in March 2007
– approximately a year and a half before the commencement of the 300-day filing period.
Plaintiff does not allege that he actively sought to be promoted after March 2007.
As noted above, the Supreme Court has held that the failure to promote is
properly treated as a discrete act in the context of employment discrimination. Morgan, 536 U.S.
at 114. Moreover, Plaintiff’s claims regarding the failure to promote involved different actors
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and different hospitals over a time period of several years. Plaintiff seeks to demonstrate the
existence of a continuing violation by asserting that Defendant Goodridge-Smith’s refusal to
provide a letter attesting to the need for him to fill a position at Harlem Hospital links all of the
denials. However, he proffers only his own conclusory assertion in that regard and, particularly
in light of the fact that he applied to pools in which he was considered by several hospitals, his
assertion is insufficient to frame a genuine factual issue as to whether the denials of promotions
were the product of an overall discriminatory policy or other continuing violation.
Nor is Plaintiff’s assertion that he is entitled to equitable tolling of the filing
period availing. “‘Equitable tolling is only appropriate in ‘rare and exceptional circumstances in
which a party is prevented in some extraordinary way from exercising [his] rights.” Glatt v. Fox
Searchlight Pictures Inc., No. 11CV6784-WHP, 2013 WL 2495140, at *4 (S.D.N.Y. June 11,
2013) (quoting Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003)).
Plaintiff’s allegations that he diligently applied for promotions and requested certification, and
that he was misled in some unspecified way into believing that he would receive a promotion,
are insufficient to demonstrate a proper basis for a finding of extraordinary circumstances
warranting equitable tolling of the period in which he was required to file a complaint of
discrimination as to each of the denials of promotion. Therefore, Plaintiff’s Title VII, ADA and
ADEA claims of failure to promote are untimely. Plaintiff’s Title VII, ADA and ADEA claims
based on conduct occurring on or after October 29, 2008, are, however, timely.
Timeliness of Section 1983, Title VI and NYSHRL Claims
Plaintiff’s claims under 42 U.S.C. § 1983, Title VI and the NYSHRL are all
subject to a three-year statute of limitations. See, e.g., Mussington v. St. Luke’s Hospital Center,
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824 F. Supp. 427, 432, n. 4 (S.D.N.Y. 1993), aff’d, 18 F.3d 1034 (1994) (“[i]t is undisputed that
for § 1983 suits, the New York statute of limitations for personal injury actions, three years,
applies . . . inasmuch as [a] Title VI claim is also based on a violation of civil rights, the same
statute of limitations is appropriate for it as well”); Lugo v. City of New York, 518 F. App’x 28,
29, (2d Cir. 2013) (“[t]he statute of limitations for actions under . . the NYSHRL . . . is three
years”). Plaintiff’s original complaint was filed on December 2, 2011. As explained in the
preceding section, Plaintiff has not demonstrated the existence of a continuing violation or any
grounds for equitable tolling as to the denials of his request for promotion or any other allegedly
discriminatory acts. Plaintiff’s Section 1983, Title VI and NYSHRL claims based on events
prior to December 2, 2008, are therefore time-barred.
Administrative Exhaustion
Non-disability Discrimination Claims
Administrative exhaustion is “a precondition to bringing a [ADA, ADEA or]10
Title VII action,” Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000) (internal
quotation marks and citation omitted) and, in general, claims that were not presented to the
EEOC “may be pursued in a subsequent federal court action [only] if they are ‘reasonably
related’ to those that were filed with the agency.” Legnani v. Alitalia Linee Aeree Italiane,
S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (per curiam) (internal quotation marks and citations
omitted). Courts consider three categories of claims to be reasonably related: claims based on
conduct that “would fall within the scope of the EEOC investigation which can reasonably be
10
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See, e.g., Lang v. New York City Health and Hospitals Corp., No. 12CV5523-WHP,
2013 WL 4774751, at *3 (S.D.N.Y. Sept. 5, 2013).
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expected to grow out of the charge that was made”; claims alleging retaliation arising from the
filing of an EEOC charge; and claims alleging “further incidents of discrimination carried out in
precisely the same manner as alleged in the EEOC charge.” Williams v. New York City Hous.
Auth., 458 F.3d 67, 70 and n. 1 (2d Cir. 2006). To determine whether claims properly “fall
within the scope” of the EEOC investigation, “the focus should be on the factual allegations
made in the [EEOC] charge itself,” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (internal
quotation marks and citation omitted), and “whether the complaint filed with the EEOC gave
that agency ‘adequate notice to investigate discrimination on both bases.’” Williams, 458 at 70
(internal quotation marks and citation omitted).
Here, Plaintiff’s Intake Questionnaire and EEOC Charge only assert claims under
the ADA on the basis of his hearing impairment. Plaintiff checked “disability” as the basis for
his claims of employment discrimination and did not indicate his national origin on the Intake
Questionnaire, leaving the line blank. (See Pelle-Beer Decl., Ex. L at 2.) In his complaint letter
to Congressman Gregory Meeks, Plaintiff asserted that he is deaf, that his supervisors “claim
that [he] cannot hear and doesn’t deserve to be appointed,” and that he was retaliated against for
complaining. (Id. at 9-10.) The email that Plaintiff received from the EEOC indicates that the
EEOC also read his Intake Questionnaire as alleging only disability discrimination as the basis
for his claims and not discrimination on the basis of his national origin, race, color or age. (See
Pelle-Beer Decl., Ex. V.) Finally, in his EEOC Charge, Plaintiff alleges only that he was
discriminated against due to his disability in violation of the ADA. (See Pelle-Beer Decl., Ex.
X.) Plaintiff did not check any boxes to indicate that he was discriminated against on any other
basis and he did not state anywhere in the Charge his date of birth or his national origin. (Id.,
Ex. W.)
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Even taking the facts in the light most favorable to Plaintiff and reading his
allegations broadly, Plaintiff’s race, color, national origin and age discrimination claims are not
reasonably related to the disability claims asserted in his Intake Questionnaire and Charge.
Plaintiff gave the EEOC no basis for investigating such claims. Therefore, they are procedurally
barred and will be dismissed for failure to exhaust administrative remedies.11
Plaintiff’s Hostile Work Environment and Retaliation Claims
Defendants also argue that Plaintiff’s hostile work environment and retaliation
claims, brought under the ADA, are not reasonably related to the claims alleged in his EEOC
Intake Questionnaire and Charge. However, in his Intake Questionnaire, Plaintiff alleges that he
was subject to “constant harassment and discrimination” at work. (Pelle-Beer Decl., Ex. L at 3.)
The EEOC Investigator who reviewed Plaintiff’s Questionnaire and supporting materials
understood Plaintiff to be asserting a hostile work environment claim (id., Ex. V) and, in his
formal Charge, Plaintiff refers to: a “number of occasions” in which he had been subject to
derogatory comments; the multiple times over the preceding year and a half that his time sheets
had been altered; and the constant bad behavior of his employer. (Id., Ex. W.) Plaintiff also
explicitly stated that he has been subject to a “hostile working environment.” (Id.) The Court
finds that Plaintiff sufficiently described repeated conduct and a hostile environment in his
EEOC complaint so as to exhaust his hostile work environment claim.
For substantially the same reasons, Plaintiff’s retaliation claim was also properly
exhausted. Plaintiff specifically stated in his Intake Questionnaire that he had been retaliated
against (see Pelle-Beer Decl., Ex. L at 7) and the EEOC investigator also viewed Plaintiff’s
11
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Because disability discrimination claims are not cognizable under Title VII or the
ADEA, Plaintiff’s claims pursuant to those statutes will be dismissed in their entirety.
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Questionnaire as stating a retaliation claim (id., Ex. V). The EEOC was reasonably on notice that
Plaintiff was raising hostile work environment and retaliation claims. Thus, these claims are not
procedurally barred.
Merits of Remaining Charges
The Court now turns to the parties’ arguments concerning the merits of Plaintiff’s
timely claims for discrimination based on his hearing disability under the ADA and the
NYSHRL; for retaliation under the ADA and the NYSHRL; for hostile work environment based
on his disability under the ADA and NYSHRL; his Title VI claim for national origin, race and
color discrimination; his Section 1983 claims, brought under the Equal Protection Clause of the
Fourteenth Amendment, for race and color discrimination; and his Monell claims against the
HHC.12
ADA and NYSHRL Discrimination Claims
The ADA and the NYSHRL prohibit an employer from discriminating against a
qualified individual on the basis of disability with regards to the “terms, conditions, and
privileges of employment.” 42 U.S.C.S. § 12112 (LexisNexis 2009); N.Y. Exec. L. § 296. At
the summary judgment stage, “[t]he burden-shifting framework laid out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04, governs claims of discrimination under the ADA . . . and
12
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In Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694
(1978), the Supreme Court held that local government entities may be sued under 42
U.S.C. § 1983 only when the plaintiff can establish that the “execution of a
government's policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury” upon
which Plaintiff intends to sue.
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NYSHRL.” Ben-Levy v. Bloomberg, L.P., 518 F. App’x 17, 18 (2d Cir. 2013). The plaintiff
carries the burden of establishing a prima facie case by showing that “(1) [plaintiff’s] employer
is subject to the ADA; (2) [plaintiff] was a person with a disability within the meaning of the
ADA; (3) [plaintiff] was otherwise qualified to perform the essential functions of h[is] job, with
or without reasonable accommodations; and (4) either that plaintiff suffered an ‘adverse
employment action’ because of h[is] disability, . . . or that [his] employer refused to make a
‘reasonable accommodation’ for [him].” Noon v. International Business Machines, No.
12CV4544-CM-FM, 2013 WL 6504410, at *5-6 (S.D.N.Y. Dec. 11, 2013) (internal citations
omitted). To establish that a plaintiff suffered an adverse employment action because of a
disability, the plaintiff must demonstrate that the disability was, at the very least, “a motivating
factor” for the adverse employment action, if not a “but-for” cause for such an action. See, e.g.,
Parker v. Columbia Pictures Indus., 204 F.3d 326, 336 (2d Cir. 2000) (holding that “the mixedmotive analysis available in the Title VII context applies equally to cases brought under the
ADA”).13
13
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But see Lyman v. New York Presbyterian Hosp., No. 11CV3889-KPF, 2014 WL
3417394, at *10 (S.D.N.Y. July 14, 2014) (explaining that Parker has been called
into question by the Supreme Court’s decision in Gross v. FBL Fin. Servs., Inc., 557
U.S. 167 (2009), which held that which held that, under the ADEA, a plaintiff must
prove that “age was the ‘but for’ cause of the challenged employer decision.”) The
court in Lyman also noted that, because the ADA and the ADEA contain parallel
language, some courts have extended this holding to the ADA. See Lyman, 2014
WL 3417394, at *10. The court further stated that certain courts in this Circuit
“have preferred to treat Parker as binding absent a conclusive pronouncement by the
Second Circuit or the Supreme Court, and have continued to apply mixed-motives
analysis under the ADA.” Id. Because Plaintiff’s claims fail under either the “butfor” or the “motivating factor” test, the distinction does not matter for the purposes
of deciding this motion.
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It is undisputed that Plaintiff is a person with a disability under the ADA and that
HHC is an employer covered by the ADA with notice of his disability. It is also undisputed that
Plaintiff was qualified to perform the essential functions of his job with a reasonable
accommodation, which HHC had provided. Plaintiff has asserted timely claims that he was
subject to adverse actions when he was suspended on February 17, 2009 and again when he was
terminated on August 5, 2009. In support of his claim that his suspension and termination were
motivated by discriminatory animus against him, Plaintiff only offers one example of a comment
that his direct supervisor, Defendant Reynolds, allegedly made to him – namely, that “Defendant
Goodridge said she would not promote him because he could not hear.” (Pl. 56.1 Counter St. ¶
44.) However, neither Defendant Reynolds nor Defendant Goodridge-Smith made the decisions
to suspend or terminate Plaintiff; the Harlem Hospital Office of Labor Relations did so following
investigations into his behavior. Moreover, Defendant Reynolds’ alleged comment was made
nearly three years before Plaintiff’s February 2009 suspension. Beyond this comment, Plaintiff
offers only conclusory allegations of discriminatory animus and criticisms of the investigatory
findings that preceded his suspension and terminations, all of which are insufficient to frame a
genuine disputed factual issue as to the reasons for his suspension and termination. Cf.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (“a party opposing a properly
supported motion for summary judgment may not rest upon mere allegation or denials of his
pleading, but must set forth specific facts showing that there is a genuine issue for trial.”); see
also Jimoh v. Ernst & Young, 908 F. Supp. 220, 226 (S.D.N.Y. 1995) (“[a]s a matter of law, an
employee’s disagreement with an employer’s business decision is insufficient to prove
discriminatory conduct.”) (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir.
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1988)). Accordingly, Plaintiff has not made the requisite prima facie showing of a nexus
between adverse employment actions and disability-based discrimination.
Even if Plaintiff were assumed to have made out a prima facie case of disability
discrimination, Defendants have offered a legitimate, non-discriminatory reason for the
employment actions – namely, Plaintiff’s threats to Defendant Reynolds. “Upon the defendant’s
articulation of . . . a non-discriminatory reason for the employment action, the presumption of
discrimination arising with the establishment of the prima facie case drops from the picture, and
the burden shifts back to the plaintiff to come forward with evidence that the defendant’s
proffered, non-discriminatory reason is a mere pretext for actual discrimination.” Ben-Levy, 518
F. App’x at 19 (internal quotation marks and citations omitted). Defendant Reynolds reported
that she had been threatened by the Plaintiff to the Hospital’s police, who investigated the two
incidents. The police, the OATH ALJ and then the PRB all determined that the evidence
supported Defendant Reynold’s allegations. Accordingly, Defendants have offered a legitimate
nondiscriminatory reason for the disciplinary actions taken against the Plaintiff in the form of his
suspension and later termination. See Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000) (“[a]n
employer does not violate Title VII when it takes adverse employment action against an
employee to preserve a workplace environment that is governed by rules, subject to a chain of
command, free of commotion, and conducive to the work of the enterprise”); see also Collins v.
NYC Transit Auth., 305 F.3d 113, 119 (2d Cir. 2002) (“[w]here an employee’s ultimate
termination depends upon, and is allowed by, a decision of an independent and unbiased
arbitrator based on substantial evidence after a fair hearing, the arbitration decision has probative
weight regarding the requisite causal link between an employee’s termination and the
employer’s illegal motive”). Even viewing the facts in the light most favorable to Plaintiff, no
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rational trier of fact could determine on the record before the Court that Plaintiff’s suspension
and termination were the product of the Defendants’ discriminatory animus against the Plaintiff.
Therefore, the Court grants Defendants’ motion for summary judgment as to Plaintiff’s
discrimination claims under the ADA and NYSHRL.
ADA and NYSHRL Retaliation Claim
“The anti-retaliation provisions in . . . the ADA, and the NYSHRL . . . contain
nearly identical language and are governed by the same burden-shifting analysis.” See
Wesley-Dickson v. Warwick Valley Cent. School Dist., No. 10CV2428-JGK, 2013 WL
5338516, at *17 (S.D.N.Y. Sept. 24, 2013) (internal citation omitted). To establish a prima facie
case of retaliation under the ADA and NYSHRL, a plaintiff must proffer evidence of: (1)
participation in a protected activity; (2) knowledge by plaintiff’s employer of the protected
activity; (3) that plaintiff suffered a “materially adverse” action; and (4) that there is a causal
connection between the protected activity and the materially adverse action. Schiano v. Quality
Payroll Sys., 445 F.3d 597, 608 (2d Cir. 2006). For claims of retaliation, the Supreme Court has
set forth a broader definition of “adverse employment action” than the one used for discrimination
claims, see, e.g., Kessler v. Westchester County Dep’t of Soc. Servs., 461 F.3d 199, 207 (2d Cir.
2006) (citing Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 69 (2006)). Although this
definition was developed in the context of Title VII retaliation claims, the Second Circuit has also
applied it in evaluating ADA retaliation claims, see, e.g., Ragusa v. Malverne Union Free Sch.
Dist., 381 F. App’x 85, 90 (2d Cir. 2010). For the purposes of establishing a prima facie case of
retaliation, an employer's action is “materially adverse” if it is “harmful to the point that [it] could
well dissuade a reasonable worker” from engaging in an ADA-protected activity. Hicks v.
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Baines, 593 F.3d 159, 165 (2d Cir. 2010) (internal quotation marks and citation omitted). If the
plaintiff proffers a prima facie case, defendants have the burden of presenting a legitimate, nonretaliatory reason for the adverse action(s), and the burden shifts to the plaintiff to show that the
reason was a pretext for discriminatory retaliation. See Cosgrove v. Sears, Roebuck & Co., 9
F.3d 1033, 1039 (2d Cir. 1993); Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2d Cir. 1990).
Here, Plaintiff alleges that he reported charges of discrimination to his union in
2006 or early 2007, but he also testified that his union never communicated his alleged charges
to anyone at HHC. (See Def 56.1 ¶ 107.) Plaintiff further alleges that he had complained to
Omowale informally before the 2007 hiring pool about Defendant Goodridge-Smith, but that he
did not hear anything further from Omowale. (Pl. 56.1 Counter St. ¶¶ 59-62.) These purported
complaints were made at least two years before his first suspension. In 2008, Plaintiff alleges,
he made a verbal complaint of discriminatory treatment to Defendant Dr. Palmer’s secretary.
(Pl. 56.1 Counter St. ¶¶ 82-83.) Plaintiff further contends that, after he complained to Defendant
Dr. Palmer, the “Defendants ratcheted up their discriminatory acts against him,” he was no
longer permitted to fill out his time sheets and his pay was docked. (Id. ¶¶ 67, 73-78, 90.)
Plaintiff also had difficulty getting time off to attend his mother’s funeral and keeping himself
on direct deposit. (Id. ¶¶ 103-112.) After he returned from his suspension, Plaintiff alleges,
Defendant Reynolds rewrote his evaluation to change it from “satisfactory” to “less than
satisfactory” and wrote that plaintiff “bypasses superiors and goes to executive office for CEO
and COO . . . Does not understand the chain of command.” (See Pelle-Beer Dec., Ex. F pp. 16870.) Plaintiff further contends that this evaluation was written on September 13, 2009,
approximately five days after the EEOC sent notice to counsel at HHC that a discriminatory
complaint had been filed with it by the Plaintiff. The documentary evidence shows, however,
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that the “satisfactory” evaluation for the period ending September 2008 was not changed, and
that the evaluation in question was prepared in March, not September, 2009. A “below
standard” evaluation for the period beginning in September 2008 is dated September 30, 2009.
(Schowengerdt Dec., Ex. AA at D0199-D0204; see also supra n.6.) Finally, according to
Plaintiff, after he filed his complaint with the EEOC on August 21, 2009, Defendants refused to
negotiate any further with him or his union when they had been doing so previously.
Assuming, arguendo, that the docking of Plaintiff’s pay, his difficulty getting
time off and direct deposit, his suspension and, ultimately, the circumstances surrounding and
leading to his termination can establish the third prong of the prima facie case of retaliation,
Plaintiff would still need to show a causal connection between his complaints and any later
adverse employment action and that the reasons proffered by the Defendants are not a mere
pretext for retaliation. Plaintiff has not offered any evidence of retaliatory animus on the part of
anyone at HHC that would establish the requisite causal connection, and there were a number of
different actors involved in the alleged adverse actions taken against the Plaintiff over a lengthy
time period. Moreover, Plaintiff’s latest complaint to Dr. Palmer’s secretary occurred in
September of 2008, while most of the allegedly adverse actions taken against Plaintiff, including
his suspension and termination, did not occur until the following year, making it even more
difficult to establish causation. See, e.g. Yarde v. Good Samaritan Hosp., 360 F. Supp. 2d 552,
562 (S.D.N.Y. 2005) (“Three months is on the outer edge of what courts in this circuit recognize
as sufficiently proximate to admit of an inference of causation. Six months between protected
activity and discharge is well beyond the time frame for inferring retaliatory causation.”)
(citations omitted). The earliest of the alleged retaliatory adverse actions Plaintiff suffered was
the docking of his pay, which supposedly began sometime in 2008, before his complaint to Dr.
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Palmer’s secretary and more than a year after his complaint to Omowale. Defendant also offers
a legitimate non-retaliatory reason for plaintiff’s suspension and termination, namely the fact
that Plaintiff threatened Defendant Reynolds, which show that these disciplinary actions were
not a pretext for retaliation. Defendants’ alleged refusal to negotiate after the EEOC complaint
was filed came in the context of an investigation and the disciplinary proceedings regarding the
alleged August 4, 2009, threat to Defendant Reynolds. Accordingly, even taking the facts in the
light most favorable to the Plaintiff, the Court finds that Plaintiff has not framed a genuine
dispute of fact as to whether he was retaliated against. Defendants’ motion for summary
judgment as to Plaintiff’s retaliation claims under the ADA and NYSHRL is granted.
ADA and NYSHRL Hostile Work Environment Claim
In order to state a claim for hostile work environment under the ADA,14 the
plaintiff must show: (1) that the “workplace was permeated with discriminatory intimidation,
ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of the
[plaintiff’s] employment and create an abusive working environment.” Tanvir v. New York City
Health & Hospitals Corp., 480 F. App’x 620, 622 (2d. Cir. 2012) (internal quotation marks and
citation omitted). Although there is no “magic threshold” for the number of harassing incidents
that is required to establish a hostile work environment, see Sclafani v. PC Richard & Son, 668
F. Supp. 2d 423, 430 (E.D.N.Y. 2009), a plaintiff’s workplace must have been permeated with
intimidation if the conduct complained of is insufficiently severe. See id. Ridicule and insult
alone, as minor incidents, will not be sufficient, and the offending incidents must be sufficiently
14
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Because hostile work environment claims under the NYSHRL are governed by the
same standards as claims under the ADA and Title VII, the Court considers the two
together. See, e.g. Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n. 1 (2d Cir.1999).
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continued and concerted so as to be considered pervasive. See Kassner v. 2d Ave Delicatesssen,
Inc., 496 F.3d 229, 240-41 (2d Cir. 2007). Moreover, a plaintiff’s subjective belief that his
workplace was permeated by hostility is insufficient. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993) (the environment must be objectively as well as subjectively hostile).
Whether a reasonable person would find a work environment to be hostile requires an
assessment of the totality of the circumstances, including considerations such as: “(1) the
frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically
threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct
unreasonably interferes with the employee’s work performance.” Brennan v. Metropolitan
Opera Ass’n, 192 F.3d 310, 319 (2d Cir. 1999).
Here, Plaintiff alleges that, by the end of 2008, he could not longer fill out his
time sheets and began to notice that he was being paid less. He was not initially allowed to
travel abroad to his mother’s funeral, although eventually he was permitted to go. Plaintiff also
alleges that on three instances Defendant Reynolds called him to speak with her in the presence
of a fellow employee, which embarrassed him, and that he was told by another employee that
Reynolds was attempting to get him fired. Finally, Plaintiff contends that, in 2009, he was not
trained on a new computer system. The Court finds these assertions to be no more than vague
allegations of isolated incidents. Although Plaintiff may subjectively have felt that he was
experiencing a hostile work environment, the actions he alleges were taken are not sufficiently
severe or pervasive to form a hostile work environment claim under the ADA or the NYSHRL.
See Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 351, 359-61 (S.D.N.Y. 2006) (“ . . .
insufficient training; . . . requests for documentation before granting vacation; . . . excessive
scrutiny and review” are not materially adverse employment actions for the purposes of a
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discrimination or hostile work environment claim); see also Alfano v. Costello, 294 F.3d 365,
374 (2d Cir. 2002) (“[a]s a general rule, incidents must be more than episodic; they must be
sufficiently continuous and concerted in order to be deemed pervasive”) (internal quotation
marks and citation omitted). Accordingly, the Court grants Defendants’ motion for summary
judgment as to Plaintiff’s hostile work environment claims under the ADA and NYSHRL.
Title VI, 42 U.S.C. §§ 2000d et seq. Claim
Title VI provides that “[n]o person in the United States shall, on the ground of
race, color, or national origin, . . . be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 42 U.S.C.S. § 2000d (LexisNexis 2006). To state a
claim for a violation of Title VI, “a plaintiff must show, through specific factual allegations . . .,
that (1) the defendant discriminated on a prohibited basis; (2) the discrimination was intentional;
and (3) the discrimination was a substantial or motivating factor for the defendant’s action.” HB
v. Monroe Woodbury Cent. Sch. Dist., No. 11 Civ. 5881, No. 11CV5881-CS, 2012 WL
4477552, at *14 (S.D.N.Y. Sept. 27, 2012) (internal quotation marks and citations omitted).
Here, aside from Plaintiff’s own conclusory allegations, there is no evidence that anyone
discriminated against the Plaintiff on the basis of his race, color or national origin. Moreover,
“for a claimant to recover under Title VI against an employer for discriminatory employment
practices, a threshold requirement is that the employer be the recipient of federal funds aimed
primarily at providing employment.” Ass’n Against Discrimination in Employment, Inc. v. City
of Bridgeport, 647 F.2d 256, 276 (2d Cir. 1981) (emphasis added). A plaintiff must allege a
“logical nexus” between the federally funded program and the employment discrimination
suffered. Commodari v. Long Isl. Univ., 89 F. Supp. 2d 353, 378 (E.D.N.Y. 2000). In this case,
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Plaintiff does not proffer evidence of the purpose of the federal funding and fails to allege any
nexus between the federal funds and the employment discrimination that he allegedly suffered.
Accordingly, the Court grants Defendants’ motion to dismiss Plaintiff’s Title VI claim.
Section 1983 Fourteenth Amendment Equal Protection Claim
Plaintiff also asserts a claim under the Fourteenth Amendment to the United
States Constitution, pursuant to 42 U.S.C. § 1983, for a violation of his equal protection rights on
the basis of his race and color. (Amended Compl. ¶¶ 175-85.)15 Employment discrimination
claims brought by public employees under the Equal Protection Clause are analyzed under the
McDonnell Douglas framework described above. See Vivenzio v. City of Syracuse, 611 F.3d
98, 106 (2d Cir. 2010). Here, the bulk of Plaintiff’s equal protection claims relate to failure to
promote him, which occurred outside of the three-year statute of limitations for Section 1983
claims. Even if Plaintiff could establish that he was subject to other adverse action giving rise to
an inference of discriminatory intent, Plaintiff has not identified any similarly situated
individuals not sharing Plaintiff’s purported characteristics who were given preferential
treatment. See, e.g., McGuinness v. Lincoln Hall, 263 F.3d 49, 53-55 (2d Cir. 2011) (to
establish a claim under the equal protection clause, a plaintiff must show that other employees
who were similarly situated in all material respects were given preferential treatment). The
Court concludes that no reasonable jury could find that Plaintiff has established an Equal
15
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In his Amended Complaint, Plaintiff additionally mentions that his due process rights
were violated and that the Defendants conspired against him, but these are only
conclusory allegations and are not supported by any factual allegations. Moreover,
Plaintiff’s opposition papers only offer arguments in support of an equal protection
claim. Thus, if Plaintiff intended to raise due process or conspiracy claims, the Court
deems them abandoned.
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Protection Clause violation on the part of the Defendants, and therefore grants Defendants’
motion for summary judgment on this claim.
Section 1983 Monell Claims
To establish municipal liability under Monell,16 a plaintiff must allege (1) the
existence of a municipal policy or custom, and (2) a causal connection between the policy and
the alleged civil rights deprivation. Jones v. Westchester County Dept. of Corrections, 557 F.
Supp. 2d 408, 416-17 (S.D.N.Y. 2008). However, “[u]nless a plaintiff shows that he has been
the victim of a federal law tort committed by persons for whose conduct the municipality can be
responsible, there is no basis for holding the municipality liable[;] Monell does not create a
stand-alone cause of action under which a plaintiff may sue over a governmental policy,
regardless of whether he suffered the infliction of a tort resulting from the policy.” Askins v.
Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). If a plaintiff fails to allege plausibly that
municipal employees violated his or her constitutional rights, the plaintiff's Monell claim
“necessarily fails as well” as against the municipal entity. Kajoshaj v. New York City Dep’t of
Educ., 543 F. App’x 11, 16-17 (2d Cir. 2013).
Here, Plaintiff has not shown that he suffered a tort under federal law, nor has he
provided any evidence in support of the proposition that HHC perpetuated or permitted a pattern
or practice of discrimination against the Plaintiff. Accordingly, this claim also fails as a matter
of law.
16
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See Rookard v. HHC, 710 F.2d 41, 45 (2d Cir. 1983) (Monell applies to the HHC, as
it is a municipal entity).
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CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted
in its entirety.
This Memorandum Opinion and Order resolves Docket Entry Number 45.
The Clerk of Court is hereby directed to enter judgment in favor of the
Defendants and to close this case.
SO ORDERED.
Dated: New York, New York
March 25, 2015
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
ACHEAMPONGSJ.WPD
VERSION 3/25/15
32
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