Davis v. State of New York Department of Corrections et al

Filing 48

OPINION AND ORDER: re: 36 MOTION for Summary Judgment. For the reasons stated above, Defendants motion is GRANTED. The Clerk of Court is directed to terminate the pending motion, (Doc. 36), and close the case. (Signed by Judge Cathy Seibel on 6/13/2017) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MELVIN DAVIS,
Plaintiff,
No. 15-CV-4270 (CS)
– against –
OPINION & ORDER
STATE OF NEW YORK DEPARTMENT
OF CORRECTIONS, CORRECTION OFFICER
KEITH CANFIELD and CORRECTION OFFICER
JAMES B. MCANNEY,
Defendants.
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Appearances:
Howard R. Birnbach
Great Neck, New York
Counsel for Plaintiff
Steven N. Schulman
Assistant Attorney General
Office of the Attorney General of the State of New York
New York, New York
Counsel for Defendants
Seibel, J.
Before the Court is Defendants’ motion for summary judgment. For the reasons stated
below, the motion is GRANTED.

1

I. BACKGROUND
A. Facts1
Plaintiff Melvin Davis, an African-American man, has been employed by the New York
State Department of Corrections and Community Supervision (“DOCCS”) since 2008 as a
correction officer (“CO”) at Fishkill Correctional Facility (“Fishkill”). (P’s 56.1 Resp. ¶¶ 1, 5.)2
DOCCS is an agency of the State of New York that administers the State’s correctional facilities,
including Fishkill. (Id. ¶ 2.) Defendant COs Keith Canfield and James McAnney were at all
relevant times employed by DOCCS at Fishkill – McAnney since 1989 and Canfield since 1998.
(Id. ¶¶ 3, 4.)
In the summer of 2013, Plaintiff had been assigned for at least four years to Housing Unit
A-West, as the only CO for the overnight shift from 10:30 p.m. to 6:30 a.m. (Id. ¶¶ 8, 14.)
During the summer of 2013, Canfield and McAnney were also both assigned to Housing Unit AWest, as the only two COs for the morning shift from 6:30 a.m. to 2:30 p.m. (Id. ¶¶ 9, 10, 14.)
Canfield and McAnney would relieve Plaintiff from his shift each day. (Id. ¶ 14.) Canfield and
McAnney did not outrank Plaintiff, and had no supervisory control over him. (Id. ¶ 11.)
Plaintiff met McAnney around April 2013, when McAnney first transferred to Housing
Unit A-West. (See id. ¶ 12.) Prior to the incident in question, Plaintiff did not have any
problems with McAnney, who “seemed to be a nice guy.” (Id. ¶ 13.) Prior to the incident,
Plaintiff had known Canfield for about four and a half years, (id. ¶ 14), and had never filed a
complaint against Canfield during that time, (id. ¶ 15).

1

The facts are undisputed unless otherwise noted, and are taken from the parties’ Local Rule 56.1 submissions
unless otherwise noted.
2
“P’s 56.1 Resp.” refers to Plaintiff’s Local Rule 56.1 Response to Defendants’ Statement of Material Facts that Are
Not in Dispute. (Doc. 44.)

2

On July 5, 2013, McAnney and Canfield were in Housing Unit A-West’s “back room,”
which is a room behind the officer’s station that contains lockers for some of the COs and a table
where COs often eat meals. (Id. ¶ 16.) McAnney was eating his lunch at the table. (Id.)
Plaintiff was not present. (Id.) McAnney had brought cookies to work in a clear sandwich bag
that was reusable by virtue of plastic ridges at the opening that, when pressed or zipped together,
sealed the bag. (Id. ¶ 17.)3 As Canfield was on a diet, McAnney teased him by offering him
cookies, which Canfield declined. (Id. ¶ 18.) Shortly thereafter, McAnney was called out of the
room, but left the cookie bag. (Id. ¶ 19.)
As a practical joke, Canfield poked a hole below the bag’s zipper and poked a piece of
pre-cut packing twine through the hole. (Id.) Canfield tied the twine in a knot around the bag’s
zipper and looped the twine over a pipe in the ceiling, which left the bag containing the cookies
hanging from the ceiling pipe. (Id.) McAnney returned to the room and asked for his cookies, at
which point Canfield told him to find them. (Id. ¶ 20.) After looking for the cookie bag,
McAnney saw it hanging from the ceiling pipe and climbed a chair to reach and grab it. (Id.)
McAnney ripped the bag apart, taking with him the part of the bag containing the cookies and
leaving a remnant of the bag and its zipper attached by the twine to the ceiling pipe. (Id.)

3
Plaintiff responds to this and many other statements contained in Defendants’ 56.1 statement with the same long
quote from Plaintiff’s testimony at his deposition. In many instances the quote does not dispute the specific fact
Defendants assert is undisputed, and in some the quote does not even relate to the same subject matter. In both
cases, I deem Defendants’ asserted facts, if properly supported, to be undisputed for the purposes of this motion.
See Fed. R. Civ. P. 56(e)(2); Peters v. Mount Sinai Hosp., No. 08-CV-7250, 2010 WL 1372686, at *4 (S.D.N.Y.
Mar. 30, 2010) (deeming undisputed Defendants’ asserted facts where Plaintiff offered only formulaic recitation of
unrelated facts in her 56.1 response). Plaintiff also purports to dispute certain facts because he “was not present at
th[e] alleged conversation,” (e.g., P’s 56.1 Resp. ¶ 18), or because he “lacks . . . personal knowledge” sufficient to
respond, (e.g., id. ¶¶ 29, 30). Plaintiff had the opportunity to take discovery as to any facts of which he did not have
personal knowledge, and again, any properly supported facts he fails to properly address in his 56.1 response I deem
undisputed for purposes of the instant motion. See Gadsden v. Jones Lange Lasalle Ams., Inc., 210 F. Supp. 2d 430,
438 (S.D.N.Y. 2002) (“Courts in this circuit have not hesitated to deem admitted the facts in a movant’s Local Civil
Rule 56.1 Statement that have not been controverted by a Local Civil Rule 56.1 statement from the nonmoving
party.”).

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Nine days later, on July 14, 2013, Plaintiff was working his usual shift. (Id. ¶ 21.) At
approximately 5:45 a.m., Plaintiff was in the back room. (Id.) While reaching for a box of
pretzels he kept on top of one of the lockers, Plaintiff noticed the bag and twine remnant hanging
from the ceiling pipe. (Id.) Plaintiff testified at his deposition that when he observed the baggie
tied to the ceiling, it was twenty to twenty-four inches long and “had baggy arms on it” as well as
“a head.” (Id.) Plaintiff also testified that this angered him because “the first thing I thought of
was somebody being lynched or something.” (Id.) Plaintiff removed the bag remnant and twine
from the ceiling pipe, (id. ¶ 22; Doc. 40 Ex. C (“P’s Dep.”), at 108), and placed it in his pocket,
(see P’s 56.1 Resp. ¶¶ 22, 26).
Shortly thereafter, McAnney arrived at the unit to relieve Plaintiff from his shift, (P’s
56.1 Resp. ¶ 23), but Canfield had the day off, (id. ¶ 34). Without knowing who had been
involved, (id. ¶ 24), Plaintiff gave McAnney the bag remnant and twine and asked him what it
was, (see id. ¶¶ 23, 24, 26; P’s Dep. 108). McAnney informed Plaintiff that Canfield had tied the
bag of cookies to the ceiling pipe to play a prank on McAnney. (P’s 56.1 Resp. ¶ 25; Doc. 39
(“McAnney Decl.”) ¶ 9.) McAnney placed the bag remnant and twine in the trash. (P’s 56.1
Resp. ¶ 27.) Plaintiff never discussed the incident with Canfield. (Id. ¶ 37.)
Plaintiff then went to complain to Lieutenant Witold Suski, the watch commander, who
asked Plaintiff to draft a memorandum about the incident. (Id. ¶ 28.) Plaintiff wrote the
requested memo and left the facility. (Id. ¶ 32.) Lt. Suski asked Sergeant Shawn Barto to
investigate the matter. (Id. ¶ 28.)4 Sgt. Barto then went to the back room of Housing Unit AWest to retrieve the bag remnant and twine. (Id. ¶ 29.) There, Sgt. Barto told McAnney that
Plaintiff had made a complaint about the bag remnant and twine. (Id.) McAnney retrieved the

4

Plaintiff never had any issues with either Lt. Suski or Sgt. Barto before this incident. (Id. ¶ 31.)

4

object from the trash and gave it to Sgt. Barto. (Id.) At Lt. Suski’s direction, Sgt. Barto took
pictures of the bag remnant and twine. (Id. ¶ 30.) Sgt. Barto asked McAnney to draft a
memorandum responding to Plaintiff’s complaint, which McAnney wrote on July 14, 2013. (Id.
¶ 33.) In a memorandum to Lt. Suski, Sgt. Barto concluded that the incident was “just a
harmless prank played on one officer [CO McAnney] by another [CO Canfield] with no
malicious intent.” (Id. ¶ 35 (alterations in original); Doc. 40 Ex. F, at 33.) When Canfield came
back to work the next day, July 15, 2013, he was also asked to write a memorandum in response
to Plaintiff’s complaint. (P’s 56.1 Resp. ¶ 36.)
Neither McAnney nor Canfield have ever made any race-based remarks or comments to
or about Plaintiff. (Id. ¶¶ 38, 39.) In fact, no one at Fishkill has ever made any racist or
discriminatory remarks to Plaintiff. (Id. ¶ 51.) After July 14, 2013, Plaintiff never had any
further problems with McAnney or Canfield. (Id. ¶ 40.) Apart from the July 14, 2013
complaint, Plaintiff never submitted a complaint about discrimination to DOCCS. (Id. ¶ 50.)
Nor has Plaintiff submitted any labor grievances. (Id.)
On April 22, 2014, Plaintiff filed a charge with the Equal Employment Opportunity
Commission (“EEOC”), alleging that Defendants had violated his civil rights by constructing a
dummy in a noose and hanging it from a ceiling pipe in the back room. (Id. ¶ 41.) McAnney
and Canfield were asked by DOCCS to write memoranda in response to Plaintiff’s EEOC
complaint, which they did on August 18, 2014. (Id. ¶ 42.)
On November 4, 2014, at around 7:30 a.m., Plaintiff found a toy black rat with a noose
tied around it on the outside staircase leading to his apartment. (Id. ¶ 43.) Plaintiff reported the
toy rat and noose to his landlord and his psychologist, but not to the police or to anyone at
DOCCS. (Id. ¶ 44.) In fact, Plaintiff never discussed the toy rat and noose with anyone at work

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or otherwise reported it to DOCCS. (Id. ¶ 45; P’s Dep. 95, 96.) Plaintiff did not know who
placed the toy rat and noose on the outside staircase of his apartment. (P’s 56.1 Resp. ¶ 46.)
McAnney and Canfield both state that they were not directly or indirectly involved in placing the
toy rat and noose at Plaintiff’s apartment, and did not learn about the incident until Plaintiff
initiated the instant lawsuit. (Id. ¶¶ 47, 48.)
Plaintiff testified at his deposition in March 2016 that when a group of employees came
to Fishkill from Arthur Kill Correctional Facility “about four years ago,” tensions arose between
the two groups, including graffiti in one of the Fishkill restrooms to the effect of “Arthur Kill
niggers go home” and “Arthur Kill, black monkey.” (See Doc. 46 Ex. C, at 151-54.) Plaintiff
testified that he saw the N word “three, four years ago on numerous occasions” on the walls of
the correction officers’ bathroom, that the graffiti would then be covered up with paint, but “then
somebody would come, like new people, they would come and then rewrite [the graffiti] there.”
(Id. at 150-51.) Plaintiff did not identify who painted the graffiti. Plaintiff testified that at some
unspecified time “in the last two or three years” another CO complained to their lieutenant, who
had the walls painted black, (see id. at 151-52), “within 24 hours,” (id. at 154).5
On March 10, 2015, the EEOC issued a decision, stating that it was unable to conclude
that DOCCS had violated federal law. (P’s 56.1 Resp. ¶ 49.) On the same day, the EEOC issued
Plaintiff a right to sue letter. (Id.)

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In his affidavit, Plaintiff states, “The graffiti languished there for years with no attempt to remove it . . . .” (Doc.
46 ¶ 13.) Plaintiff testified at his deposition, however, that the graffiti would be painted over before it was rewritten
and that eventually the stalls were painted black to prevent graffiti. (See id. Ex. C, at 151.) I do not accept facts
included in Plaintiff’s affidavit accompanying his summary judgment opposition where those facts are contradicted
by his prior deposition testimony. See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001); Vos v. Lee, No. 07CV-804, 2009 WL 10640615, at *7 (E.D.N.Y. Dec. 23, 2009) (collecting cases).

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B. Procedural History
Plaintiff initiated this action by filing a complaint on June 3, 2015, which alleged claims
for hostile work environment under Title VII of the Civil Rights Act of 1964 against DOCCS
and under 42 U.S.C. § 1983 against Canfield and McAnney, and for retaliation under Title VII
against DOCCS. (See Doc. 1 ¶¶ 13-19.) Following discovery, Defendants filed the instant
motion on February 10, 2017. (Doc. 36.)
II. DISCUSSION
A. Legal Standard
Summary judgment is appropriate when “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). “[T]he dispute about a material fact is ‘genuine’ . . . if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit
under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
The movant bears the initial burden of demonstrating “the absence of a genuine issue of
material fact,” and, if satisfied, the burden then shifts to the non-movant to “present evidence
sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d
Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). “The mere existence
of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there
must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477
U.S. at 252. Moreover, the non-movant “must do more than simply show that there is some

7

metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986), and he “may not rely on conclusory allegations or unsubstantiated
speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal
quotation marks omitted).
“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials . . . .” Fed. R. Civ. P. 56(c)(1). Where an affidavit is used to support or oppose the
motion, it “must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant . . . is competent to testify on the matters stated.” Fed. R.
Civ. P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d
Cir. 2008). In the event that “a party fails . . . to properly address another party’s assertion of
fact as required by Rule 56(c), the court may,” among other things, “consider the fact undisputed
for purposes of the motion [or] grant summary judgment if the motion and supporting materials –
including the facts considered undisputed – show that the movant is entitled to it.” Fed. R. Civ.
P. 56(e)(2), (3).
B. Hostile Work Environment
The standard for hostile work environment claims is the same whether brought under
Title VII or § 1983, so I will analyze Plaintiff’s claims against all Defendants together. See
Smith v. Town of Hempstead Dep’t of Sanitation Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 451
(E.D.N.Y. 2011) (“The standard for showing a hostile work environment under Title VII, Section
1981, Section 1983, and the New York State Human Rights Law is essentially the same.”).

8

[T]o establish a hostile work environment claim under Title VII, a plaintiff must
produce enough evidence to show that the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment. In considering whether a plaintiff has met this burden,
courts should examine the totality of the circumstances, including: the frequency
of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with the victim’s job performance.
Rivera v. Rochester Genesee Regional Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (citations,
alterations, and internal quotation marks omitted). The “test has objective and subjective
elements: the misconduct shown must be severe or pervasive enough to create an objectively
hostile or abusive work environment, and the victim must also subjectively perceive that
environment to be abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (internal
quotation marks omitted). “A plaintiff must also demonstrate that []he was subjected to the
hostility because of h[is] membership in a protected class.” Brennan v. Metro Opera Ass’n, Inc.,
192 F.3d 310, 318 (2d Cir. 1999).
“To decide whether the [hostile work environment] threshold has been reached, courts
examine the case-specific circumstances in their totality and evaluate the severity, frequency, and
degree of the abuse.” Alfano, 294 F.3d at 374. “Pervasive” harassment is harassment that is
“more than episodic,” and instead “continuous and concerted.” Hayut v. State Univ. of N.Y., 352
F.3d 733, 745 (2d Cir. 2003) (internal quotation marks omitted). “The environment,” however,
“need not be unendurable or intolerable.” Feingold v. New York, 366 F.3d 138, 150 (2d Cir.
2004) (internal quotation marks omitted). “[T]he fact that the law requires harassment to be
severe or pervasive before it can be actionable does not mean that employers are free from
liability in all but the most egregious cases.” Id. (internal quotation marks omitted). “A single
incident in which the conduct alleged crosses the line from mere insults to physical force . . . is

9

more likely to support a hostile work environment claim.” Cruz v. Liberatore, 582 F. Supp. 2d
508, 519 (S.D.N.Y. 2008) (citations omitted). But the Second Circuit has not ruled out the
possibility that a “one-time use of a severe racial slur could, by itself, support a hostile work
environment claim when evaluated in the cumulative reality of the work environment.” Daniel
v. T&M Protection Res., LLC, No. 15-560, 2017 WL 1476598, at *1 (2d Cir. Apr. 25, 2017)
(summary order).
Plaintiff identifies three incidents he claims created a hostile work environment: the bag
remnant and twine attached to the ceiling pipe, the toy rat and noose outside his apartment, and
racist graffiti in his workplace restroom.
First, Plaintiff has not produced any evidence connecting the toy rat and noose to his
work environment or any of the Defendants. Plaintiff testified that he does not know who placed
the toy rat on his staircase. (P’s 56.1 Resp. ¶ 46.) Both Canfield and McAnney stated that they
had no involvement, and were not aware of the incident until receiving the complaint in this
lawsuit, (id. ¶¶ 47-48; McAnney Decl. ¶ 18; Doc. 38 (“Canfield Decl.”) ¶ 17), and there is no
evidence to the contrary. Plaintiff’s belief that McAnney and Canfield were somehow involved,
without citation to evidence in the record, is insufficient to create a triable issue of fact. See
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (“[I]n the discrimination context, a
plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for
summary judgment.”); Fadia v. New Horizon Hosp., 743 F. Supp. 2d 158, 168 (W.D.N.Y. 2010)
(“Plaintiff’s subject[ive] belief that he was discriminated against is insufficient to create a triable
issue of fact.”).
Plaintiff did not alert anyone at DOCCS about the toy rat incident. (P’s 56.1 Resp. ¶¶ 44,
45.) Absent any connection to Plaintiff’s coworkers, any indication Plaintiff made anyone at

10

DOCCS aware of the incident, or any suggestion that DOCCS should have known about the
incident, it cannot contribute to a hostile work environment claim against DOCCS under Title
VII. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) (employer not
liable for coworker’s harassing behavior “unless the employer either provided no reasonable
avenue of complaint or knew of the harassment but did nothing about it”), abrogated in part on
other grounds, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Wahlstrom v.
Metro-N. Commuter R.R., 89 F. Supp. 2d 506, 522 (S.D.N.Y. 2000) (“When a co-worker, as
opposed to a supervisor, is alleged to have engaged in . . . harassment, the employer will
generally not be liable unless the employer either provided no reasonable avenue of complaint or
knew of the harassment but did nothing about it.”) (internal quotation marks omitted). And
absent any evidence that McAnney or Canfield were personally involved in the incident, they
cannot be held liable under § 1983. See Rodriguez v. City of N.Y., 644 F. Supp. 2d 168, 199
(E.D.N.Y. 2008) (“[A] plaintiff must demonstrate a defendant’s personal involvement in the
alleged discrimination in order to establish a claim against such defendant in his individual
capacity.”). Although one might infer that whoever placed the rat near Plaintiff’s home was
resentful of his having made an issue of the noose/bag remnant incident, on this record that act
cannot be ascribed to any of the Defendants.
Second, I will assume that placement of a noose in the workplace can be “sufficient in
itself to allow a finder of fact to conclude that the plaintiff was subjected to a hostile work
environment.” Brown v. Orange & Rockland Utilities, Inc., 594 F. Supp. 2d 382, 392 (S.D.N.Y.
2009) (collecting cases); see Smith, 798 F. Supp. 2d at 453 (public display of noose in workplace
created genuine issue of material fact as to whether hostile work environment existed); Williams
v. N.Y.C. Hous. Auth., 154 F. Supp. 2d 820, 826 (S.D.N.Y. 2001) (denying motion to dismiss

11

hostile work environment claim based on single display of noose).6 In contrast to those cases,
however, the object in question here is, on the undisputed facts, not a noose.
Plaintiff testified that he perceived the bag remnant and twine to be a hanging body, (P’s
Dep. 29), which testimony could allow a reasonable jury to conclude that he (at least for the
moment) subjectively found the workplace incident to be hostile or abusive. But Plaintiff cannot
establish the objective prong of the inquiry – that is, that a reasonable person would regard the
bag remnant and twine to be a noose. Having examined photographs of the bag remnant and
twine, (Doc. 40 Ex. D), I find that no reasonable person would conclude the objects to be
anything so violent or racially charged as a noose. While they might on a superficial first glance
together bear some resemblance to a stick figure, a second glance would reveal that they are just
as Defendants describe – the torn zipper of a resealable plastic bag attached to a piece of twine.
Although at this stage I must view the facts in the light most favorable to Plaintiff, I am not
required to “credit assertions that are wholly contradicted by photographic evidence in the
record.” Matteo v. Kohl’s Dep’t Stores, Inc., No. 09-CV-7830, 2012 WL 760317, at *7
(S.D.N.Y. Mar. 6, 2012), aff’d, 533 F. App’x 1 (2d Cir. 2013); see Scott v. Harris, 550 U.S. 372,
380-81 (2007) (“When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for summary judgment.”). There is
simply nothing that resembles a noose. A reasonable person therefore would not have found the
bag remnant and twine to be racially hostile or abusive.

6

Other courts have found placement of a noose to be insufficient to defeat a motion for summary judgment. See,
e.g., Mays v. Town of Hempstead, No. 10-CV-3998, 2012 WL 5866230, at *6-7 (E.D.N.Y. Nov. 16, 2012); McCoy
v. City of N.Y., 131 F. Supp. 2d 363, 374-75 (S.D.N.Y. 2001). Given “this nation’s opprobrious legacy of violence
against African-Americans” and that the noose “is itself an instrument of [that] violence,” Williams, 154 F. Supp. 2d
at 824, I decline to, as Defendants urge, say that the single display of a noose is as a matter of law insufficient to
give rise to a hostile work environment, cf. Daniel, 2017 WL 1476598, at *1 (“[T]he one-time use of a severe racial
slur could, by itself, support a hostile work environment claim . . . .”).

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As to the racist graffiti, despicable as it is, there is no evidence in the record that
McAnney or Canfield were personally involved, so they cannot be held liable under § 1983. See
Rodriguez, 644 F. Supp. 2d at 199. There is also no evidence that any of Plaintiff’s supervisors
were involved, so for DOCCS to be held liable Plaintiff would need to show either that DOCCS
“provided no reasonable avenue of complaint or knew of the [graffiti] but did nothing about it.”
Quinn, 159 F.3d at 766. Plaintiff cannot create a fact issue on either prong. First, on the record
evidence DOCCS provided a reasonable avenue of complaint, at the very least informally –
Plaintiff testified that one of his coworkers complained to a supervisor about the graffiti, after
which the bathroom walls were painted black, presumably to prevent further graffiti. (Doc. 46
Ex. C, at 151-52.) Plaintiff offers no reason why this avenue of complaint was unreasonable.
Second, by Plaintiff’s own testimony, DOCCS responded to the racist graffiti by painting over it
each time. (See id. at 151.) After another CO complained to his supervisor, DOCCS had the
walls painted black “within 24 hours.” (Id. at 153-54.) “In the context of racist graffiti, when
graffiti is reported to the employer and the employer promptly removes the offending language,
the employer has taken appropriate remedial action.” EEOC v. Rock-Tenn Servs. Co., 901 F.
Supp. 2d 810, 827 (N.D. Tex. 2012) (citing Pedigo v. Nat’l Cart Co., 95 F. App’x 847, 848 (8th
Cir. 2004)). Here, the record establishes that DOCCS would paint over racist graffiti as it
appeared, and when it became clear that this was insufficient to solve the problem, it painted the
walls black within one day of receiving a complaint. Plaintiff identified no instances of racist
graffiti after DOCCS had the walls painted black in 2013 or 2014. Thus this is not a case where
“the graffiti remain[ed] over an extended period of time, or the employer’s response [wa]s
repeatedly ineffective in eliminating the racist graffiti.” Id. Plaintiff has failed to create a triable
issue of fact as to the reasonableness of DOCCS’s response to the racist graffiti, and no

13

reasonable jury could find it liable. See Rios v. Buffalo & Fort Erie Pub. Bridge Auth., 326 F.
App’x 612, 614 (2d Cir. 2009) (summary order) (employers’ removal of offensive graffiti
contributed to its reasonable response); Holder v. Honda Mfg. of Ind. LLC, No. 14-CV-134, 2015
WL 4425650, at *8 (S.D. Ind. July 17, 2015) (employer was reasonable in promptly
investigating and removing offensive graffiti from bathroom); Tressler v. Amtrak, No. 09-CV2027, 2012 U.S. Dist. LEXIS 170304, at *19-20 (D.D.C. Nov. 30, 2012) (employer “took amply
reasonable steps to address the graffiti – both by removing and investigating any graffiti that was
discovered, and also by striving to prevent the appearance of any graffiti in the first place”).
“[L]ooking at all the circumstances,” Scott, 510 U.S. at 23, the three incidents of which
Plaintiff complains together are insufficiently severe or pervasive to rise to the level of a hostile
work environment. The bag remnant and twine would not be understood by a reasonable person
to be racially hostile. The individual Defendants were not involved in the toy rat incident or the
racist graffiti, and neither can be imputed to DOCCS. And even if the racist graffiti could be
properly attributed to DOCCS, it, without more, does not rise to the level of a pervasive and
abusive work environment. See Caver v. City of Trenton, 420 F.3d 243, 263 (3d Cir. 2005)
(“[I]nappropriate racist comments, graffiti, and flyers . . . was insufficient without more to
establish a hostile work environment.”); Brooks v. Firestone Polymers, LLC, 70 F. Supp. 3d 816,
859-60 (E.D. Tex. 2014) (racist bathroom graffiti that included black faces, slurs, and derogatory
comments about President Obama was insufficient to create a hostile work environment where
drawings were “confined to a single restroom, involved no physical threat, and were not directed
at” plaintiff), aff’d, 640 F. App’x 393 (5th Cir. 2016) (summary order); Wilburn v. Eastman
Kodak Corp., 670 F. Supp. 2d 192, 196 (W.D.N.Y. 2009) (graffiti in bathrooms and elevators,
some of which was “racist and patently offensive, in the context of all the evidence, . . . was not

14

so ubiquitous, severe or pervasive as to create an actionable hostile work environment”); see also
Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843-44 (8th Cir. 2002) (six racist
comments, dissemination of racist and homophobic poem, and drawings of “KKK,” a swastika,
and a hooded figure in restroom were insufficient to create a hostile work environment).7
Thus, on the undisputed facts, Plaintiff’s hostile work environment claim must fail.
C. Retaliation
On a motion for summary judgment, the Plaintiff must make out a prima facie case of
retaliation. Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001); Clemente v. N.Y. State
Div. of Parole, 684 F. Supp. 2d 366, 374 (S.D.N.Y. 2010). If the plaintiff meets this burden, the
defendant must offer a legitimate non-retaliatory reason for its actions. Cifra, 252 F.3d at 216.
If the defendant puts forth such a reason, the plaintiff must demonstrate that there is sufficient
evidence for a reasonable juror to find that the reason offered by the defendant is “merely a
pretext” for retaliation. Id.
To establish a prima facie case of retaliation, Plaintiff must show that: (1) he was
engaged in activity protected under anti-discrimination statutes; (2) Defendants were aware of

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Plaintiff makes passing reference in his brief to another noose incident at Fishkill, but does not cite to any evidence
or discuss any details of this alleged incident. (Doc. 43 at 2,3.) In his affidavit, Plaintiff refers to Canfield’s
deposition testimony about a noose hung in a work vehicle that Canfield had “heard about . . . through the
grapevine.” (Doc. 46 ¶ 23.) Because the only evidence of this incident is hearsay, it must be disregarded on
summary judgment. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010); Hollander v. Am-Cyanamid Co., 172
F.3d 192, 198 (2d Cir. 1999), abrogated in part on other grounds, Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133 (2000). Further, nowhere does Plaintiff suggest that he was aware of this incident until he read Canfield’s
testimony in this case. (See Doc. 46 ¶ 23 (describing this second noose incident as coming “to light during the
litigation”).) Accordingly, it cannot contribute to a hostile work environment because Plaintiff did not perceive it
during his employment. See Varughese v. Mt. Sinai Med. Ctr., No. 12-CV-8812, 2015 WL 1499618, at *61
(S.D.N.Y. Mar. 27, 2015) (plaintiff must at least be generally aware of comments for them to contribute to hostile
work environment); Cestone v. Gen. Cigar Holdings, Inc., No. 00-CV-3686, 2002 WL 424654, at *3 (S.D.N.Y.
Mar. 18, 2002) (harassment of which plaintiff was unaware cannot support hostile work environment); see also
Schwapp, 118 F.3d at 111 (error not to consider statements made outside plaintiff’s presence because fact issues
existed as to “[w]hether [plaintiff] was aware of them during his employment, and more significantly, whether in
light of these incidents, the incidents [plaintiff] experienced more directly would reasonably be perceived, and were
perceived, as hostile or abusive”) (alteration and internal quotation marks omitted).

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Plaintiff’s participation in the protected activity; (3) Defendants took adverse action against
Plaintiff; and (4) there is a causal connection between Plaintiff’s protected activity and the
adverse action taken by Defendants. Fincher v. Depository Trust & Clearing Corp., 604 F.3d
712, 720 (2d Cir. 2010). “Title VII is not a general ‘bad acts’ statute,” Wimmer v. Suffolk Cty.
Police Dep’t, 176 F.3d 125, 135 (2d Cir. 1999) (internal quotation marks omitted), and “[p]etty
slights or minor annoyances that often take place at work and that all employees experience do
not constitute actionable retaliation,” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (internal
quotation marks omitted).
Here, Defendants argue that Plaintiff cannot establish that he was subjected to an adverse
employment action. “[A] plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which . . . means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). To establish, as
Plaintiff appears to contend here,
that a retaliatory hostile work environment constitutes a materially adverse change
that might dissuade a reasonable worker from reporting activity prohibited by Title
VII, a plaintiff must satisfy the same standard that governs hostile workplace claims
by showing that the incidents of harassment following complaints were sufficiently
continuous and concerted to have altered the conditions of his employment.
Rasco v. BT Radianz, No. 05-CV-7147, 2009 WL 690986, at *15 (S.D.N.Y. Mar. 17, 2009); see
Richardson v. N.Y. State Dep’t of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999)
(“[U]nchecked retaliatory co-worker harassment, if sufficiently severe, may constitute adverse
employment action so as to satisfy the second prong of the retaliation prima facie case.”).
Here, Plaintiff claims that the toy rat incident was retaliation for complaining about the
bag remnant and twine. Assuming for the sake of argument that this one-time incident could be
sufficiently severe – a dubious proposition – here, as discussed above, Plaintiff has failed to
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establish that the toy rat incident was attributable to any Defendant. It thus cannot suffice as an
adverse employment action for purposes of his retaliation claim, which must be dismissed.
III. CONCLUSION
For the reasons stated above, Defendants’ motion is GRANTED.8 The Clerk of Court is
directed to terminate the pending motion, (Doc. 36), and close the case.
SO ORDERED.
Dated: June 13, 2017
White Plains, New York
_____________________________
CATHY SEIBEL, U.S.D.J.

8

In light of my disposition, I need not address Defendants’ other arguments, many of which appear meritorious.

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