Atkins v. Pitney Bowes Mgmt Services

Filing 124

MEMORANDUM OPINION AND ORDER #105127. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed above, they are either moot or without merit. The defendants motion for summary judgment is granted. T he plaintiff's motion for summary judgment is denied. The Clerk is directed to enter judgment dismissing this case, to close all pending motions, and to close this case. re: 123 MOTION for Summary Judgment filed by Daniel G. Atkins, 104 MOTION for Summary Judgment filed by Gerard Frassita, Jerry Lester, Pitney Bowes Management Services, Inc. Human Resources Managers, Pitney Bowes Mgmt Services, Brian Covil, Fidel Razack, Luis Medina. (Signed by Judge John G. Koeltl on 1/9/2015) (rjm) Modified on 1/12/2015 (ca).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
DANIEL ATKINS,
Plaintiff,

12 Cv. 5575 (JGK)

- against -

MEMORANDUM OPINION &
ORDER

PITNEY BOWES MANAGEMENT SERVICES ET
AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The pro se plaintiff, Daniel Atkins, brings this action
against Pitney Bowes Management Services (“Pitney Bowes”), Luis
Medina, Brian Colvil, Jerry Lester, and unidentified Pitney
Bowes human resources managers.

Atkins appears to allege claims

for employment discrimination, retaliation, hostile work
environment, assault, battery, defamation, and wrongful
termination.

The defendants moved pursuant to Rule 56 of the

Federal Rules of Civil Procedure for summary judgment on all
causes of action.

This Court has jurisdiction under 28 U.S.C.

§ 1331 and 28 U.S.C. § 1367(a).

For the reasons explained

below, the defendants’ motion is granted.
On December 22, 2014, the plaintiff also moved for summary
judgment.

He failed to request a pre-motion conference or

provide a Rule 56.1 Statement of Facts.

And, as explained

below, the motion lacks merit and is therefore denied.

1

I.
The standard for granting summary judgment is well
established.

“The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986); Gallo v. Prudential Residential Servs.,
Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994).

“[T]he trial

court’s task at the summary judgment motion stage of the
litigation is carefully limited to discerning whether there are
genuine issues of material fact to be tried, not to deciding
them.

Its duty, in short, is confined at this point to issue-

finding; it does not extend to issue-resolution.”

Gallo, 22

F.3d at 1224.
The moving party bears the initial burden of “informing the
district court of the basis for its motion” and identifying the
matter that “it believes demonstrate[s] the absence of a genuine
issue of material fact.”

Celotex, 477 U.S. at 323.

The

substantive law governing the case will identify those facts
that are material, and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

2

Anderson v.

In determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)).

Summary judgment is improper if there is any evidence

in the record from any source from which a reasonable inference
could be drawn in favor of the nonmoving party.

See Chambers v.

TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

If the

moving party meets its burden, the nonmoving party must produce
evidence in the record and “may not rely simply on conclusory
statements or on contentions that the affidavits supporting the
motion are not credible.”

Ying Jing Gan v. City of New York,

996 F.2d 522, 532 (2d Cir. 1993).
When, as here, a pro se plaintiff opposes summary judgment,
the Court must afford the plaintiff “special solicitude” in the
construction of the pleadings and the motions and in the
enforcement of procedural rules.
F.3d 90, 100–03 (2d Cir. 2010).

See Tracy v. Freshwater, 623
However, this solicitude does

not “relieve [a] plaintiff of his duty to meet the requirements
necessary to defeat a motion for summary judgment.”

Jorgensen

v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal
quotation marks omitted).

3

II.
The parties do not dispute the following facts unless
otherwise noted.
A.
Pitney Bowes employed David Atkins from June 1990 to
January 2012.

Atkins Dep. Tr. 6.

Pitney Bowes staffs

mailrooms, copy centers, and conference rooms and provides other
administrative services for businesses. 1

Marinelli Decl. ¶ 2.

From 1990 to 2006, Atkins worked in the copy centers and the
mailrooms of various District of Columbia law firms.

Atkins

Dep. Tr. 296–98.
In May 2005, Atkins filed a complaint against Pitney Bowes
in the United States District Court for the District of
Columbia, alleging claims for wrongful termination,
discrimination, and retaliation.

Atkins v. Pitney Bowes Mgmt.

Servs., No. 05cv912 (D.D.C. filed May 6, 2005).
the parties settled the case.

In April 2006,

As part of the settlement

agreement, Pitney Bowes promised to enroll Atkins in “Team Lead
Training” and to transfer Atkins to an available position in New
York City.

In exchange, Atkins agreed to release Pitney Bowes

1

In October 2013, Novitex Acquisition, LLC purchased the
outstanding shares of Pitney Bowes common stock. Marinelli
Decl. ¶ 4. Because this acquisition occurred after the
plaintiff’s termination and because both parties refer to Pitney
Bowes as the defendant, the Court will refer to the corporate
defendant as “Pitney Bowes.”
4

and its employees from any liability arising before the date of
the settlement agreement.

Atkins Dep. Tr. Ex. 6.

In December

2006, Atkins began working in the copy center for Pitney Bowes
at White and Case, LLP in New York City.

Atkins Dep. Tr. 6–7.

On November 11, 2009, Atkins alleges that he overheard
Brian Colvil, a supervisor in the copy center, telling another
employee that he believed Jesus Christ was gay.
156–57.

Atkins Dep. Tr.

Colvil made this comment in a copy room, about fifteen

to twenty feet away from where Atkins was standing.
Tr. 157–58.

Atkins Dep.

Atkins then informed Medina that he was offended by

Colvil’s comment.

Atkins Dep. Tr. 161–62.

Atkins also alleges that Colvil laughed at him and made
“lewd sounds” when Atkins read the Bible during breaks, that
Colvil made rude comments to him, and that Colvil “impeded” his
travel.

Atkins Dep. Tr. 164–67, 194–96.

Atkins also claims

that he found a letter from Colvil to Medina dated October 5,
2010, in which Colvil alleged that Atkins referred to someone as
a “white devil.”

Atkins Dep. Tr. 197–99, 221–23.

Atkins

further asserts that Colvil drew a picture of the copy room
employees that did not include Atkins.

Atkins Dep. Tr. 226–30.

And at his deposition, Atkins described a number of other verbal
altercations between Colvil and him.
230.

5

Atkisn Tr. 216–20, 224–25,

In August 2009, Atkins informed Medina that Colvil and
Fidel Razak had falsified their time cards.
180.

Atkins Dep. Tr.

Medina then informed the Pitney Bowes copy center

employees that they must fill out their time cards correctly.
Atkins Dep. Tr. 182.
In November 2010, Atkins was transferred from the copy
center to the mailroom of White and Case.

Atkins Dep. Tr. 186.

Atkins believes that the transfer was in retaliation for “all
the activities that were going on in the copy center.”
Dep. Tr. 183, 186.

After he transferred, Atkins retained the

same job title, salary, and responsibilities.
184.

Atkins

Atkins Dep. Tr.

Atkins worked in the mailroom at the White and Case New

York office until he was terminated in January 2012.

Atkins

Dep. Tr. 186.
On February 18, 2011, Atkins alleges that Jerry Lester, a
supervisor, yelled at him and pushed him.
02, 238.

Atikins Dep. Tr. 201–

Atkins was startled and hit his head on a wall.

Atikins Dep. Tr. 203, 239–40.

Atkins informed Medina of the

incident, and Medina reprimanded Lester.

Atkins Dep. Tr. 207.

On March 30, 2011, Atkins alleges that Medina told Atkins
that “[y]ou people [are] always looking for somebody to give you
something.”

Atkins Dep. Tr. 108.

Atkins, who is African

American, believed that “you people” referred to his race.

6

Atkins Dep. Tr. 109–10.

Medina denies making this statement.

Medina Decl. ¶ 20.
According to Atkins, Medina is the only person from Pitney
Bowes that discriminated against him on the basis of, or made a
comment about, his race during the relevant time period.
Dep. Tr. 119, 150–51.

Atkins

And Atkins does not allege that he was

denied a promotion to team leader because of his race.

Atkins

Dep. Tr. 121, 133.
B.
In July and August of 2011, Pitney Bowes required that all
of its employees complete two online training courses, one on
data privacy and the other on insider ethics.
3.

Marinelli Decl. ¶

Pitney Bowes required that its employees finish the insider

ethics course by August 17, 2011, and the data privacy course—
after an extension—by October 1, 2011.

Id.

On or around August 9, 2011, Shakel Houssain Ali, a Pitney
Bowes team leader, informed Atkins that he needed to complete
the training and offered to provide Atkins a computer to do so.
Atkins Dep. Tr. 10–14; Ali Decl. ¶ 4.
would not complete the training.

Atkins told Ali that he

Ali Decl. ¶ 4.

On August 11,

Medina asked Atkins why he refused to complete the training, and
Atkins explained that he feared the training would prevent him
from speaking about the harassment that he had faced at Pitney
Bowes.

Atkins Dep. Tr. 15–19; Medina Decl. ¶ 7.
7

That same day, Medina e-mailed and called Mayte Lopez, then
a Pitney Bowes Human Resources Generalist, and Lopez and Medina
decided that Atkins should be issued a verbal warning for
insubordination.
5.

Medina Decl. ¶¶ 8–9, Ex. 1; Lopez Decl. ¶¶ 4–

Accordingly, Medina gave Atkins a verbal warning on August

11, 2014.

Medina Decl. 9, Ex. 2.

On August 18, 2011, Lopez met with Atkins to discuss why he
refused to complete the training.

According to Lopez, Atkins’s

explanation was incomprehensible.

Nonetheless, Lopez asked

Atkins to complete the training by August 22, 2011.

Atkins Dep.

Tr. 24; Lopez Decl. ¶ 7.
On September 6, 2011, Medina e-mailed Lopez, informing her
that Atkins had failed to complete the training by August 22,
2011.

Medina Decl. Ex. 3.

Medina and Lopez then determined

that Atkins should be given a written warning for
insubordination.

Lopez Decl. ¶ 9; Medina Decl. ¶ 12.

On

October 19, 2011, Medina met with Atkins and issued him a
written warning.

Atkins Decl. 43–45, Ex. 2; Medina Decl. ¶ 12.

Lopez also met with Atkins that day and informed him that if he
failed to finish the training in thirty days, he would be
subject to further disciplinary action, including termination.
Lopez Decl. ¶ 10.
Having failed to complete the training, Atkins received a
final warning for insubordination on January 3, 2012.
8

He was

informed that if he failed to complete the training within five
business days, he would be subject to further disciplinary
action, including discharge.
Decl. ¶¶ 15–16.

Atkins Tr. 46–48, Ex. 3; Medina

Between January 3 and January 13, 2012, Lopez

also met with and explained to Atkins that he would be
discharged if he failed to complete the training.

Lopez Decl.

¶ 12.
Atkins failed to complete the training, and on or about
January 30, 2012, Pitney Bowes terminated his employment.
Medina Decl. ¶¶ 17–18; Roelke Decl. ¶ 2.

Atkins was the only

active employee at the White and Case New York location who
failed to complete the training courses.

Medina Decl ¶ 19.

C.
On February 7, 2012, Atkins filed a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”).

The charge alleges that Pitney Bowes terminated

Atkins because he objected to a religiously offensive comment
made by Colvil.

Ex. to Pl’s. Opp’n Br.

By notice dated April

26, 2012, the EEOC issued Atkins a notice of right to sue on his
charge of religious discrimination.

Id.

On July 16, 2012, Atkins filed his Original Complaint.
After multiple rounds of amendments—in which Atkins voluntarily
dismissed his 42 U.S.C. § 1983 claim and dismissed Gerard
Frassita and Fidel Razack as defendants—on June 13, 2014, the
9

remaining defendants moved for summary judgment on the remaining
causes of action.

The defendants provided the plaintiff with a

“Notice to Pro Se Litigant” as required by Local Rule 56.2,
which sets out the responsibilities of a pro se plaintiff in
responding to a motion for summary judgment.
III.
A.
Atkins alleges that he was terminated because of his race
and religion.

Discrimination claims brought pursuant to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
are governed at the summary judgment stage by the burdenshifting analysis in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). 2
Under this test, the plaintiff carries the initial burden
of establishing a prima facie case of discrimination.
Douglas, 411 U.S. at 802.

McDonnell

To meet this burden, the plaintiff

must establish that (1) he belongs to a protected class; (2) he
was qualified for the position that he held; (3) he was subject
to an adverse employment action; and (4) the adverse employment
action occurred under circumstances giving rise to an

2

To the extent Atkins has alleged a claim under 42 U.S.C. §
1981, that claim is also governed by the McDonnell Douglas
burden-shifting analysis. See Sims v. City of New York, No.
08cv5965, 2010 WL 3825720, at *8 (S.D.N.Y. Sept. 30, 2010).
10

interference of discriminatory intent.

See id.; Feingold v. New

York, 366 F.3d 138, 152 (2d Cir. 2004).
If the plaintiff can establish the elements of a prima
facie case, the burden of production shifts, and the defendant
must put forth a “legitimate, nondiscriminatory reason” for the
employer's challenged action.

McDonnell Douglas, 411 U.S. at

802; see also Feingold, 366 F.3d at 157.

If the defendant

satisfies this burden, then the presumption of discrimination is
“rebutted and drops from the case.”

St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 507 (1993) (internal quotation marks
omitted) (quoting Tex. Dept. of Cmty. Affairs v. Burdine, 450
U.S. 248, 255 & n.10 (1981)).

Thereafter, the plaintiff has the

opportunity to demonstrate that the proffered reason was not the
true reason for the employment decision, and that the
plaintiff's membership in a protected class was.
U.S. at 254–56.

Burdine, 450

The plaintiff must provide admissible evidence

that is “sufficient to permit a rational finder of fact to infer
that the defendant's employment decision was more likely than
not based in whole or in part on discrimination.”

Feingold, 366

F.3d at 154; see also Mines v. City of New York/DHS, No. 11cv
7886, 2013 WL 5904067, at *5 (S.D.N.Y. Nov. 4, 2013).
B.
The defendants do not dispute that Atkins has satisfied the
first three elements of a prima facie case.
11

Title VII prohibits

discrimination on the basis of religion and race, 3 42 U.S.C.
§ 2000e-2(a), Atkins was qualified for the position that he
held, and Atkins was fired from his job.
It is unnecessary to decide whether Atkins has satisfied
the fourth prong of his prima facie case because the defendants
provided evidence supporting a non-discriminatory reason for
Atkins’s termination.

And Atkins has not provided evidence from

which a rational jury could find that this reason was false and
merely a pretext for discrimination.

Therefore, Atkins’s

discrimination claim fails as a matter of law. 4
Atkins’s failure to complete the required training courses
is a legitimate, non-discriminatory reason for his termination.
Pitney Bowes required all of its employees to complete the
insider ethics course by August 17, 2011, and the data privacy
course by October 1, 2011.
training courses.

Atkins refused to complete these

Medina, Lopez, and Ali informed Atkins

multiple times that he had to finish the training courses,

3

The EEOC charge listed only “religion” as the alleged basis
for discrimination. However, the defendants did not argue that
Atkins failed to exhaust his administrative remedies, and this
requirement is not jurisdictional. See Fernandez v. Chertoff,
471 F.3d 45, 58 (2d Cir. 2006).
4

To the extent that Atkins alleges that Pitney Bowes and its
employees subjected him to discrimination before April 2006,
those claims are also barred by the “Agreement of Settlement and
Release.” Atkins Dep. Tr. Ex. 6. That agreement releases
Pitney Bowes from liability “from the beginning of the world to
the date of this Release.” Id. ¶ 6.
12

explained to him that failure to complete the training would
result in discipline, and attempted to convince him that no harm
would come to him from completing the courses.

Despite

receiving multiple warnings and failing to complete the courses,
Atkins was terminated.
As to the racial discrimination claim, the only such
evidence identified by Atkins is Medina’s alleged statement that
“[y]ou people [are] always looking for somebody to give you
something.”

Atkins Dep. Tr. 108.

Although racially charged

remarks can support a claim of discrimination, Kirschner v.
Office of the Comptroller of the City of N.Y., 973 F.2d 88, 93
(2d Cir. 1992), courts within and outside this Circuit have held
that the use of the phrase “you people” is not sufficient to
show racial discrimination, without contextual evidence
suggesting that the speaker was referring to the plaintiff’s
race.

See, e.g., Santana v. City of Ithaca, No. 12cv625, 2014

WL 6476160, at *7 (N.D.N.Y. Nov. 19, 2014); Whitehurst v. 230
Fifth, Inc., 998 F. Supp. 2d 233, 253–54 & n.14 (S.D.N.Y. 2014)
(collecting out-of-Circuit cases).
evidence.

Atkins has provided no such

See Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d

Cir. 1998) (holding that a single stray comment, “without more,
cannot get a discrimination suit to a jury”).
Whatever the meaning of Medina’s comment, it was unrelated
to Atkins’s failure to take the required training, and it was
13

made ten months before Atkins was terminated.

The Second

Circuit Court of Appeals has explained that “the more remote and
oblique the remarks are in relation to the employer’s adverse
action, the less they prove that the action was motivated by
discrimination.”

Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d

111, 115 (2d Cir. 2007).

The gap between Medina’s remark and

Atkins’s termination is too long rebut the defendants’
explanation for firing Atkins.

See, e.g., Witkowich v.

Gonzales, 541 F. Supp. 2d 572, 585 (S.D.N.Y. 2008) (holding that
an ambiguous statement regarding the plaintiff was not probative
of discrimination when it was made about a year before the
employment decision).

And no reasonable trier of fact could

find that the defendants used the training courses as a pretext
to fire Atkins when Medina—among others—asked the plaintiff
multiple times to complete the courses.
Atkins also appears to allege that he was subject to
disparate treatment on the basis of his race.

A plaintiff may

raise an inference of discrimination by “showing that the
employer subjected him to disparate treatment, that is, treated
him less favorably than a similarly situated employee outside
his protected group.”
39 (2d Cir. 2000).

Graham v. Long Island R.R., 230 F.3d 34,

But Atkins has failed to show that any non-

African Americans were excused from completing the training on

14

account of their race.

Every active employee at the White and

Case New York office—save Atkins—completed the training.
Nor has Atkins provided material facts showing that
Colvil’s views on religion had any effect on Atkins’s
termination.

Colvil’s irreligious statement occurred over a

year before the plaintiff was terminated.

Moreover, Colvil was

Atkins’s copy room supervisor, and Atkins was transferred from
the copy room to the mailroom in November 2010.

There is no

evidence that Colvil had anything to do with Atkins’s
termination.

See Tomassi, 478 F.3d at 115 (“[R]emarks made by

someone other than the person who made the decision adversely
affecting the plaintiff may have little tendency to show that
the decision-maker was motivated by the discriminatory sentiment
expressed in the remark.”).

Colvil’s statement and conduct were

also too far removed from Atkins’s eventual discharge to show
that Atkins was fire because of his religion.

See Campbell v.

Alliance Nat. Inc., 107 F. Supp. 2d 234, 247 (S.D.N.Y. 2000).
Therefore, the defendants’ motion for summary judgment
dismissing Atkins’s employment discrimination claims is granted. 5

5

Although not raised by the individual defendants, those
defendants could not be personally liable for this alleged Title
VII violation. See Spiegel v. Schulmann, 604 F.3d 72, 79 (2d
Cir. 2010) (per curiam).
15

IV.
A.
Atkins alleges that he was retaliated against because he
told Medina on August 31, 2009, that Colvil and Razack had
falsified their time cards and because he told Medina on
November 11, 2009, that Colvil made an allegedly offensive
comment about Jesus.

Atkins Tr. 179–80, 186–88.

Title VII makes it “unlawful . . . for an employer to
discriminate against [an employee] . . . because [the employee]
has opposed any practice made an unlawful employment practice by
[Title VII].”

42 U.S.C. § 2000e–3(a). 6

To state a prima facie

retaliation claim under Title VII, the plaintiff must show 1)
“participation in a protected activity”; 2) “the defendant’s
knowledge of the protected activity”; 3) “an adverse employment
action”; and 4) “a causal connection between the protected
activity and the adverse employment action.”

Zann Kwan v.

Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013) (internal

6

Atkins did not allege that defendants violated the New York
State Human Rights Law (“NYSHRL”), but “[t]he standards for
recovery under NYSHRL are ‘in accord with Federal standards
under title VII of the Civil Rights Act of 1964 (42 U.S.C. §
2000e et seq.).’” McQueen-Starling v. United Health Grp., Inc.,
No. 08cv4885, 2011 WL 104092, at *4 (S.D.N.Y. Jan. 11, 2011)
(quoting Ferrante v. Am. Lung Ass'n, 687 N.E.2d 1308, 1311 (N.Y.
1997)). The plaintiff also has not presented sufficient
evidence to withstand a motion for summary judgment dismissing a
claim for discrimination arising under the New York City Human
Rights Law (“NYCHRL”). See Wilson v. N.Y.P. Holdings, Inc., No.
05cv10355, 2009 WL 873206, at *29 (S.D.N.Y. Mar. 31, 2009).
16

quotation marks omitted) (quoting Jute v. Hamilton Sundstrand
Corp., 420 F.3d 166, 173 (2d Cir. 2005)).
B.
Atkins failed to show that he participated in any protected
activity.

This element turns on whether Atkins protested what

he reasonably and in good faith believed to be a Title VII
violation.

See McMenemy v. City of Rochester, 241 F.3d 279, 283

(2d Cir. 2001).

First, the falsification of time cards does not

violate Title VII. 7

Second, Colvil’s allegedly offensive

statement about Jesus also is not conduct that a reasonable
person would believe violated Title VII.
Nor has Atkins shown a causal connection between the
protected activity and the adverse employment action.

The

Supreme Court recently held that “Title VII retaliation claims
must be proved according to traditional principles of but-for
causation.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct.
2517, 2533 (2013).

But on a motion for summary judgment, the

plaintiff can show such causation by demonstrating
inconsistencies in an employer’s explanation for the adverse

7

Similarly, Atkins’s assertion that the defendants
terminated him to “cover up” violations of Pitney Bowes company
policy is not—standing alone—sufficient to show that the
supposed retaliation was unlawful. See Fattoruso v. Hilton
Grand Vacations Co., 873 F. Supp. 2d 569, 581 (S.D.N.Y. 2012)
(holding that Title VII does not protect against violations of
company policy), aff'd, 525 F. App'x 26 (2d Cir. 2013).
17

action and may also rely on other evidence supporting the prima
facie case, including close temporal proximity between the
protected conduct and the adverse action.

Kwan, 737 F.3d at

846–47.
In this case, the evidence of the non-discriminatory
reason—failure to complete the required training—is clear and
consistent.

Moreover there is no close temporal proximity to

support an inference of retaliation.

Atkins’s time card and

religion complaints—made on August 31, 2009, and November 11,
2009, respectively—and Atkins’s January 30, 2012, termination
are too far apart to establish a causal connection.

See Clark

Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (per
curiam) (holding that a twenty-month period between the
protected activity and the adverse action suggests no causality
at all); Giles v. NBC Universal, Inc., No. 10cv7461, 2011 WL
4376469, at *4 (S.D.N.Y. Sept. 20, 2011) (collecting cases and
noting “periods over one year are generally conclusive that no
retaliation has taken placed”).
Finally, as explained above, the defendants identified a
legitimate, non-discriminatory reason for firing Atkins—his
failure to complete mandatory training.

18

Atkins has not provided

any direct or indirect evidence to show that this reason was
untrue or that it was a pretext for retaliation. 8
Accordingly, the defendants’ motion for summary judgment on
the retaliation claim is granted.
V.
Atkins alleges that Colvil’s conduct created a hostile work
environment.

“Hostile work environment claims under both Title

VII and the NYSHRL are governed by the same standard.”

Summa v.

Hofstra Univ., 708 F.3d 115, 123–24 (2d Cir. 2013). 9
To establish a prima facie case of hostile work environment
under Title VII, a plaintiff must show: (1) that discriminatory
harassment was “sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment,” and (2) that a specific basis exists for
imputing the objectionable conduct to the employer.

Perry v.

Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997).

Atkins

8

Atkins was transferred to the mailroom in November 2010.
He retained the same some job title, salary, and duties.
Therefore, the transfer was not a materially adverse change in
the terms and conditions of his employment. See Galabya v.
N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000).
9

Atkins did not allege that the defendants violated the
NYCHRL. And in any event, such a claim would not survive
summary judgment. “[D]efendants can still avoid liability if
they prove that the conduct complained of consists of nothing
more than what a reasonable victim of discrimination would
consider ‘petty slights and trivial inconveniences.’” Williams
v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 41 (App. Div. 2009).
19

must show not only that he subjectively perceived the
environment to be abusive, but also that the environment was
objectively hostile and abusive.

Feingold, 366 F.3d at 150.

Atkins must also establish that he was subject to a hostile work
environment because of a protected characteristic.

Brown v.

Henderson, 257 F.3d 246, 252 (2d Cir. 2001).
Atkins has failed to identify sufficient material facts to
show a hostile work environment.

Colvil’s single statement

about Jesus to another co-worker and laughter when he noticed
Atkins reading the Bible were not sufficiently severe,
humiliating, or threatening to create a hostile work
environment.

Nor is there any evidence that Colvil’s other

conduct—while obnoxious—was because of Atkins’s race or
religion.

Further, Medina’s single comment fell far short of

the pervasive conduct required to establish a hostile work
environment.
Accordingly, the defendants’ motion to dismiss the hostile
work environment claim is granted.
VI.
Atkins alleges that he was assaulted and battered by Lester
on February 18, 2011.

Atkins filed his original complaint on

July 16, 2012—over one year after the alleged tortious conduct.
There is a one-year statute of limitations period for assault
and battery claims.

N.Y. C.P.L.R. § 215(3).
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And “filing an

EEOC charge does not toll the time for filing state tort
claims.”

Castagna v. Luceno, 744 F.3d 254, 258 (2d Cir. 2014).

To the extent that Atkins alleges a claim for intentional
infliction of emotional distress based on Lester’s conduct, this
claim is also subject to a one-year statute of limitations.

See

Callahan v. Image Bank, 184 F. Supp. 2d 362, 363 (S.D.N.Y.
2002).

These claims are therefore time barred.

Accordingly, Lester’s motion for summary judgment on the
assault, battery, and intentional inflection of emotional
distress claims is granted.
VII.
Atkins alleges that Colvil defamed him by writing a letter
stating that Atkins had referred to his supervisors as “white
devils.”

Atkins found a copy of this letter on October 10,

2010, and he commenced this lawsuit on July 16, 2012.
Defamation claims are also subject to a one-year statute of
limitations period.

N.Y. C.P.L.R. § 215(3).

This claim is

therefore time barred.
Accordingly, Colvil’s motion for summary judgment on the
defamation claim is granted.
VIII.
Atkins alleges a claim for wrongful termination under New
York common law.

However, Atkins was an at-will employee, and

there is no cause of action for wrongful termination of such an
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employee under New York law.

See, e.g., Lobosco V. N.Y. Tel.

Co./NYNEX, 751 N.E.2d 462, 464 (N.Y. 2001); Stevens v. New York,
691 F. Supp. 2d 392, 398 (S.D.N.Y. 2009).
Accordingly, the defendants’ motion for summary judgment on
the wrongful termination claims is granted.
IX.
In his briefs on this motion, Atkins appears to allege that
the defendants discharged him because he complained that Pitney
Bowes employees violated New York State labor law.

See N.Y.

Lab. Law § 215(1) (prohibiting employers from penalizing an
employee for protesting New York Labor Law violations).
However, this claim was asserted for the first time in response
to the defendants’ motion for summary judgment, and the
plaintiff has not requested to amend his complaint.

Therefore

the defendants are entitled to summary judgment on this claim.
See Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir.
2006) (Sotomayor, J.)
In any event, section 215(2)(b) provides that “[a]t or
before the commencement of any action under this section, notice
thereof shall be served upon the attorney general by the
employee.”

Atkins has not provided evidence that the New York

State Attorney General was served with notice of this suit.

And

to establish a prima facie case for retaliation under section
215(1), the plaintiff must show a causal connection between the
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protected activity and the adverse employment action.

Kassman

v. KPMG LLP, 925 F. Supp. 2d 453, 472 (S.D.N.Y. 2013).

As

explained above, Atkins has failed to present evidence from
which a reasonable juror could conclude that he was discharged
for any reason other than the fact that he failed to take the
training courses.
Accordingly, the defendants’ motion for summary judgment on
the section 215 claim is granted.
X.
On December 22, 2014, the plaintiff filed a “motion
requesting summary judgment.”

The motion sought summary

judgment in the amount of $2.6 billion in a “class action suit”
or $85 million in legal costs.

The motion for summary judgment

is procedurally improper because no pre-motion conference was
sought before making the motion as required by this Court’s
rules.

It is also procedurally improper because it is

unsupported by a Rule 56.1 statement, which is required by this
District’s Local Rules.
Substantively, it is without merit because it seeks to
obtain summary judgment on the plaintiff’s discriminatory
termination claim without providing undisputed facts on the
basis of which such a motion could be granted.

Indeed, the

Court has already found that the defendants are entitled to

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summary judgment dismissing the plaintiff’s claims, and there is
nothing in the plaintiff’s motion that alters that conclusion.
Finally, to the extent that plaintiff claims to add new
claims, such as a class action, there is no basis for adding
such claims that have not been asserted in the complaint and
certainly no basis for granting summary judgment on any such
claim.
The plaintiff’s “motion” for summary judgment is therefore
denied.
CONCLUSION
The Court has considered all of the arguments raised by the
parties.

To the extent not specifically addressed above, they

are either moot or without merit.
summary judgment is granted.
judgment is denied.

The defendants’ motion for

The plaintiff’s motion for summary

The Clerk is directed to enter judgment

dismissing this case, to close all pending motions, and to close
this case.
SO ORDERED.
Dated:

New York, New York
January 9, 2015

___________/s/______________
John G. Koeltl
United States District Judge

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