Opinion
02 Civ. 2400
December 2, 2003
OPINION AND ORDER
The plaintiff, Kevin Alston, brings this action pro se against his former employer, Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA"), and the New York City Transit Authority ("NYCTA"). The plaintiff alleges that the defendants discriminated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et. seq., and the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., on the basis of his race, color, age, and disability, and retaliation. The plaintiff describes his disabilities to include sickle cell anemia trait, a perceived heart condition, and perceived HIV infection.
The plaintiff was actually employed by MABSTOA, which is a subsidiary of the NYCTA. See, e.g., Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 77 n. 4 (2d Cir. 2003).
Although the plaintiff failed to check the box for Title VII on the form complaint provided by the Pro Se Office, the defendants assume for the purposes of this motion that the plaintiff asserts a Title VII claim because he did check boxes alleging discrimination on the basis of race and color. (See Am. Compl. ¶ 7.)
The defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the Amended Complaint in its entirety.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The 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 which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. 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 burden shifts to the nonmoving party to come forward "with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). 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); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases).
Finally, although the same standards for summary judgment apply when a pro se litigant is involved, the pro se litigant should be given special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994)); see also Amaker v. Goord, No. 98 Civ. 3634, 2002 WL 523371, at *2 (S.D.N.Y. Mar. 29, 2002). The pro se party must also be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment, unless the plaintiff's papers establish that the pro se litigant understood the nature and consequences of summary judgment.See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996);Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994). In this case, by Notice to Pro Se Litigant Opposing Motion for Summary Judgment dated May 30, 2003, the plaintiff was advised of the procedures for responding to a motion for summary judgment, including the requirement to submit a response to the defendants' Rule 56.1 Statement and to submit counter-evidence. The plaintiff has submitted an appropriate response to the defendant's motion in this case, together with supporting affirmations.
The plaintiff did not file anything that he called a Rule 56.1 Statement, but he did file opposition papers that make clear his factual disagreements with the defendants' Rule 56.1 Statement.
II.
The evidence submitted to the Court reflects the following facts as construed in the light most favorable to the plaintiff. The plaintiff was hired as a bus driver for MABSTOA on March 4, 1996. (Defs.' Rule 56. 1 So. 5 1.) The plaintiff was born on March 17, 1960. (Am. Compl. ¶ 7.)In November 1997, the plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR"), claiming that the defendants discriminated against him on the basis of race, color, and disability. (NYSDHR Complaint dated Nov. 24, 1997 attached as Ex. 10 to Declaration of Joyce Rachel Ellman ("Ellman Decl."), at 1.) The plaintiff alleged that he had been forced to take medical leave because the defendants regarded him as suffering from HIV infection. (Id.) He also alleged that he had been treated differently from his white co-workers. (Id.) The NYSDHR dismissed the plaintiff's complaint after conducting an investigation and determining that there was no probable cause to believe that the defendants had engaged in the unlawful discrimination alleged by the plaintiff. (NYSDHR Determination and Order dated July 20, 1998 attached as Ex. 11 to Ellman Decl., at 1.)
In April 2000, the plaintiff filed another complaint with the NYSDHR, claiming that the defendants discriminated against him on the basis of age and disability. (NYSDHR Complaint dated April 12, 2000 attached as Ex. 7 to Ellman Decl., at 1.) The plaintiff alleged that the defendants required him to undergo a medical examination because he was over forty years old. (Id.) The plaintiff also alleged that the defendants suspended him from work, requiring him to use accrued sick time and vacation time, until further medical tests could be conducted following an EKG. (Id. at 1-2.) The NYSDHR dismissed the plaintiff's complaint after conducting an investigation and determining that there was no probable cause to believe that the defendants had engaged in the alleged discrimination on the basis of age and disability. (NYSDHR Determination and Order dated Aug. 29, 2001 ("NYSDHR Order") attached as Ex. 8 to Ellman Decl., at 1.7 The NYSDHR determined that all bus drivers employed by the defendants are required to undergo yearly medical examinations, regardless of age or perceived disability. (NYSDHR Order at 1.) The NYSDHR also determined that the plaintiff was returned to full duty as a bus driver once a doctor concluded that the condition indicated by the plaintiff's abnormal EKG would not prevent him from performing his job. (Id.) At the time he was discharged, the plaintiff was a full-time bus driver for MABSTOA. (Defs.' Rule 56.1 St. ¶ 7; Transcript of Deposition of Kevin Alston dated Jan. 10, 2003 ("Alston Dep."), at 15.)
The plaintiff's NYSDHR complaint was also filed with the Equal Employment Opportunity Commission ("EEOC"), and on January 9, 2002 the EEOC issued the plaintiff a right-to-sue letter, indicating that the EEOC had adopted the findings of the NYSDHR. (EEOC Dismissal and Notice of Rights attached as Ex. 9 to Ellman Decl.)
On January 10, 2002, the plaintiff was suspended pending dismissal following an internal MABSTOA Step I disciplinary hearing in which it was determined that the plaintiff had misappropriated MABSTOA funds by improperly taking passenger fares. (Defs.' Rule 56.1 St. ¶ 2; MABSTOA Disciplinary Action Report dated Jan. 10, 2002 ("MABSTOA Disc. Action Report") attached as Ex. 2 to Ellman Decl.) The plaintiff's dismissal was sustained at a Step III disciplinary hearing (Step II having been bypassed) on January 14, 2002. (Id.) The plaintiff's union representative from the Transportation Workers Union ("TWU") grieved this decision to arbitration, pursuant to the procedures provided for in the collective bargaining agreement between the TWO and MABSTOA and NYCTA. (Defs.' Rule 56.1 St. I 3; MABSTOA Disc. Action Report at 3; NYCTA/MABSTOA/TWU Collective Bargaining Agreement attached as Ex. 3 to Ellman Decl. and Ex. 14 to Reply Declaration of Joyce Rachel Ellman.)
An arbitration proceeding was scheduled for February 21, 2002, and then rescheduled again for June 21, 2002, but the plaintiff failed to appear on both occasions. (Defs. Rule 56.1 St. ¶ 4; Arbitration Opinion and Award dated April 10, 2003 (`"Opinion and Award") attached as Ex. 4 to Ellman Decl.) The plaintiff's original complaint in the present action was received by the Pro Se Office on January 14, 2002.
The plaintiff's first complaint alleged discrimination pursuant to Title VII, the ADA, and the ADEA, specifically on the basis of race, color, gender/sex, and age (which the plaintiff indicated by checking the appropriate boxes on his form — complaint provided by the Pro Se Office). On March 28, 2002, Chief Judge Mukasey dismissed the Complaint sua sponte after concluding that the plaintiff had "fail[ed] to identify any discriminatory conduct on the part of defendant on the basis of his race, color, sex/gender, age, or disability." (Order dated Mar. 28, 2002, at 1.) Chief Judge Mukasey gave the plaintiff leave to file an amended complaint within 60 days. The plaintiff filed an amended complaint on April 16, 2002, and the current amended complaint was filed on July 9, 2002.
On April 10, 2003, the arbitrator issued an Opinion and Award giving the plaintiff fifteen days to show good cause for his failure to appear at the scheduled proceedings. (Defs.' Rule 56.1 St. ¶ 6; Opinion and Award at 1.) The Opinion and Award stated that in the absence of such a showing, the disciplinary charges would be sustained and the plaintiff's dismissal affirmed. (Id.) Counsel for the TWO (representing the plaintiff) thereafter informed the arbitrator that the plaintiff had failed to appear at the arbitration hearing because the plaintiff believed that the disciplinary action had been taken in retaliation for his filing of discrimination charges, and because the plaintiff wanted to await the outcome of this action before proceeding with arbitration. (Defs.' Rule 56.1 St. ¶ 6 n. 2; Letter from Ursula Levelt to William J. Dougherty dated May 8, 2003 attached as Ex. 5 to Ellman Decl.) The parties have not informed the Court of any subsequent determination made in the arbitration proceeding, but the result of that proceeding does not affect the determination reached in this case.
After the termination of his employment with MABSTOA, beginning in February or March 2002, the plaintiff worked part time as a bus driver for Suburban Transit, a charter bus company. (Defs.' Rule 56.1 So. 1 8; Alston Dep. at 10-12.) Beginning in April 2002, the plaintiff worked as a bus driver for New Jersey Transit. (Defs.' Rule 56.1 St. ¶ 8; Alston Dep. at 7.) Between April 2002 and about December 2002, the plaintiff worked for New Jersey Transit, on average, four days a week for about thirty hours, and after December 2002 he worked five days a week for thirty-eight hours. (Alston Dep. at 7-8.)
III.
The defendants contend that certain of the plaintiff's claims are time-barred. Under Title VII, the ADA, and the ADEA, a New York plaintiff must file an administrative claim within 300 days of the alleged unlawful conduct. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (Title VII); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999) (ADA); Flaherty v. Metromail Corp., 235 F.3d 133, 137 n. 1 (2d Cir. 2000) (ADEA). The filing requirement acts as a statute of limitations to bar all claims falling outside the 300-day period. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996).
The plaintiff filed the administrative complaint that provides the basis for the present action on April 12, 2000. That complaint alleged discrimination on the basis of age and on the basis of a perceived disability, namely, a heart condition. However, in his complaint in this case, the plaintiff also asserts claims of discrimination on the basis of race and perceived HIV infection. These claims of discrimination restate charges that the plaintiff made in an administrative claim filed with the NYSDHR on November 24, 1997. The NYSDHR dismissed the claim after finding that there was no probable cause to believe that the defendants had engaged in the alleged unlawful discrimination. The plaintiff now seeks to reassert those claims here, but they are time-barred because they relate to conduct that occurred well more than 300 days before the plaintiff filed the administrative claim that provides the basis for this suit.
The defendants' motion for summary judgment on the claims relating to the 1997 NYSDHR complaint-which raised claims of discrimination on the basis of race, color, and perceived HIV infection — must be granted.
Similarly, while the plaintiff checked the box marked "termination" on his complaint in this action, he never presented any claim of "termination" to the NYSDHR, or any claim that he was suspended pending termination based on any unlawful discrimination. Therefore, any such claim would be barred because it was not presented to the administrative agency and is not reasonably related to the claim that he did raise. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). The plaintiff may, however, raise a claim of retaliation in this case because such a claim is considered related to his administrative complaint. However, for the reasons explained below, such a claim in this case must be, dismissed.
IV.
There is no dispute that the plaintiff's claims of discrimination on the basis of age and disability (namely, a perceived heart condition), which he asserted in the 2000 NYSDHR complaint, are timely. These employment discrimination claims, brought pursuant to the ADEA and the ADA, are governed at the summary judgment stage by the burden-shifting analysis established inMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Jetter v. Knothe Corp., 324 F.3d 73, 75 (2d Cir. 2003) (per curiam) (ADEA); Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999) (ADA). Under the McDonnell Douglas test, the plaintiff carries the initial burden of establishing a prima facie case of discrimination.Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981) (citing McDonnell Douglas); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997). To state a prima facie case of discrimination the plaintiff must allege that the plaintiff (1) is a member of a protected class; (2) was performing his job satisfactorily; (3) was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. St. Mary's Honor Ctr., 509 U.S. at 507; McDonnell Douglas, 411 U.S. at 802;Chambers, 43 F.3d at 37; Ali v. Bank of New York, 934 F. Supp. 87, 92 (S.D.N.Y. 1996). However, the burden of establishing a prima facie case is de minimis. Chambers, 43 F.3d at 37.When a plaintiff has successfully demonstrated the elements of a prima facie case, the burden of production shifts to the defendant to put forth a legitimate, nondiscriminatory reason for the employer's challenged action. See Burdine, 450 U.S. 252-53. After the defendant articulates a legitimate reason for the action, the presumption of discrimination raised by the prima facie case drops out, and 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. Id. at 254-56;Fisher, 114 F.3d at 1136. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."Burdine, 450 U.S. at 253; see also Reeves, 530 U.S. at 143; Fisher, 114 F.3d at 1336. The Court of Appeals for the Second Circuit has instructed that in determining whether the plaintiff has met this burden, a court is to use a "case by case" approach that evaluates "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case." James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (quoting Reeves, 530 U.S. at 148-49). Although summary judgment must be granted with caution in employment discrimination actions "where intent is genuinely in issue, . . . summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers, 43 F.3d at 40; Slatky v. Healthfirst, Inc., No. 02 Civ. 5182, 2003 WL 22705123, at M (S.D.N.Y. Nov. 17, 2003).
A.
The defendants contend that the plaintiff has failed to make out a prima facie case for discrimination under the ADA. To make out a prima facie case of disability discrimination, the plaintiff must establish that (1) his employer is subject to the ADA; (2) he suffers from a disability within the meaning of the ADA; (3) he could perform the essential functions of his job with or without a reasonable accommodation; and (4) he was discriminated against because of his disability. Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149-50 (2d Cir. 1998); see 42 U.S.C. § 12112(a); Ryan v, Grae Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998); Hawana v. New York City, 230 F. Supp.2d 518, 530-31 (S.D.N.Y. 2002);Usala v. Consol. Edison Co., 141 F. Supp.2d 373, 380 (S.D.N.Y. 2001). The defendants assert that the plaintiff fails to meet this burden because he has not shown that he is disabled under the ADA.
The ADA defines "disability" with respect to an individual as "(a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such impairment; or (c) being regarded as having such an impairment." 42 U.S.C. § 12102(2)(A)-(C). The plaintiff identifies his disability as being "regarded as" having a heart condition. To prevail on his claim, the plaintiff must establish that the heart condition from which he was allegedly perceived to suffer was a disability within the meaning of the ADA. See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 646 (2d Cir. 1998) ("It is not enough, however, that the employer regarded that individual as somehow disabled; rather, the plaintiff must show that the employer regarded the individual as disabled within the meaning of the ADA.").
The plaintiff has not shown that the medical condition from which he was allegedly perceived to suffer was perceived to be one that substantially limits a major life activity. The plaintiff has in fact submitted no evidence at all relating to how this perceived condition would have affected him. In order to "substantially limit" a major life activity, the disability must either (1) cause the plaintiff to be unable to perform a major life activity that an average person in the general population could perform; or (2) significantly restrict as to the condition, manner or duration under which the plaintiff can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity. 29 C.F.R. § 1630.2(j)(1) (i)-(ii). Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2 (i). The plaintiff appears To claim that he was perceived to be substantially impaired in the major life activity of working, because he was suspended from his job as a bus driver pending further medical tests after receiving an abnormal EKG.
When assessing whether the plaintiff is substantially impaired in the major life activity of working, courts must look at the degree to which the plaintiff's impairment prevents him from performing a wide range of tasks rather than merely a set of limited tasks associated with a specific job. See, e.g., Toyota v. Williams, 122 S.Ct. 681, 693 (2002) ("When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with [his] specific job."); Colwell, 158 F.3d at 643 ("The ability to work is substantially limited . . . if the plaintiff is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.' 29 C.F.R. § 1630.2(j)(3)(i).").
The plaintiff has offered no evidence that his employer considered him substantially impaired in working as a bus driver, much less that he was perceived as being substantially impaired in the major life activity of working. The plaintiff was returned to his full-duty position as a bus driver once a doctor determined that he could perform the tasks of that job. Indeed, he was working as a full-duty bus driver at the time he was terminated in January 2002, when the defendants concluded that he had misappropriated passenger fares. Because the plaintiff has offered no evidence that his employer regarded him as having a perceived disability that substantially limited a major life activity, no reasonable jury could determine that the plaintiff is disabled under the ADA.
The defendants' motion for summary judgment on the plaintiff's ADA claim must therefore be granted.
B.
The defendants also contend that the plaintiff has failed to make out a prima facie case for discrimination under the ADEA. The plaintiff has failed to come forward with any evidence that would support a conclusion that he was discriminated against on the basis of his age. The plaintiff has alleged that he is a member of the protected class under the ADEA because he is over forty years old. Even if it is assumed that the plaintiff was performing his job satisfactorily, he has failed to allege that he suffered an adverse employment action or that such adverse employment action occurred under circumstances giving rise to an inference of discrimination. The plaintiff alleges in his NYSDHR complaint that he was forced to undergo a medical examination because he had turned forty years old. That claim was rejected by the NYSDHR on the grounds that all bus drivers working for the defendants are required to undergo yearly medical examinations, regardless of their age. The plaintiff has also put forward no evidence in this case to show that only members of the protected class are required to submit to such medical examinations. The plaintiff has offered no evidence that requiring bus drivers, a plainly safety-sensitive occupation, to take a physical examination is an adverse employment action. Therefore, he has failed to show that he suffered an adverse employment action, much less that any such action occurred under circumstances giving rise to an inference of discrimination.
The defendants' motion for summary judgment on the plaintiff's ADEA claim must therefore be granted.
V.
The plaintiff has also asserted a claim of retaliation, alleging that he was discharged on January 10, 2002 in response to his filing of discrimination claims with the NYSDHR and the EEOC. The defendants assert that the plaintiff has failed to exhaust his remedies on this claim because it was not asserted in the administrative complaint that provides the basis for this action. In the alternative, the defendants argue that the plaintiff has failed to state a prima facie case for retaliation and that, in any event, they have come forward with a nondiscriminatory reason for the plaintiff's termination.
The Court has jurisdiction only over those claims included in the EEOC charge and those "reasonably related" to claims presented in the charge.See Legnani, 274 F.3d at 686. However, in explaining which types of claims are generally considered "reasonably related" to a previous EEOC charge, the Court of Appeals for the Second Circuit has listed claims "alleging retaliation by an employer against an employee for filing an EEOC charge." Butts v. City of New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1402 (2d Cir. 1993),superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998);see also Legnani, 274 F.3d at 686-87.
Retaliation claims under the ADA and the ADEA are analyzed using theMcDonnell Douglas burden-shifting framework described above.Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997) (ADEA); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (ADA).
To establish a prima facie case of retaliation under either the ADA or the ADEA, the plaintiff must show that: (1) he engaged in an activity protected by the ADA or the ADEA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity.Wanamaker, 108 F.3d at 465; Treglia/ 313 F.3d at 719.
The plaintiff has satisfied the first three elements of the prima facie showing: (1) he engaged in the protected activity of opposing an unlawful employment practice; (2) the defendants were aware of this activity; and (3) the plaintiff was terminated, thus suffering an adverse employment action. The plaintiff has not, however, put forth any evidence to support a causal connection between his complaints and his discharge. As a result, the plaintiff has failed to demonstrate the necessary causal link between his protected behavior and the alleged retaliation.
The plaintiff could raise an issue of fact as to causation by demonstrating that there was a short time lapse between the protected activity and the alleged retaliation. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 217-18 (2d Cir. 2001) (finding a genuine issue of material fact precluding summary judgment when only twenty days elapsed between the time that the defendant learned that the plaintiff had hired an attorney to pursue gender discrimination claims against the defendant and when she was terminated); Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (causal connection shown where only twelve days separated the protected activity from the adverse employment action). The Court of Appeals for the Second Circuit has not, however, set a bright-line rule as to when the temporal link becomes too attenuated to demonstrate causation. Gorman-Bakos v. Cornell Co-op. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001).
Unlike in Cifra and Reed, however, a markedly longer period of time separated the plaintiff's complaints from his termination. In a causation analysis, the Court must look to when the defendant first became aware of the plaintiff's protected behavior. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001). In this case, the plaintiff filed the complaint with the NYSDHR that provides the basis for his claim in this case in April 2000, and the NYSDHR conducted an investigation and issued a determination in August 2001. The plaintiff was not discharged from his employment until January 2002. The delay of nearly two years between the plaintiff's filing of his administrative complaint and his termination is too attenuated to demonstrate causation in this case. See, e.g., Hawana, 230 F. Supp.2d at 530 (finding that two-year delay between plaintiff's filing of his administrative complaint and the disciplinary charges that resulted in his termination was too attenuated to suggest a causal relationship).
Moreover, the plaintiff's employer has presented a non-retaliatory and non-discriminatory reason for the plaintiff's termination. The defendants assert that the plaintiff was discharged for misappropriating passenger fares. That conclusion was sustained through a Step III disciplinary hearing, based on a passenger's reported observation of the plaintiff's conduct in accepting the passenger's fare while covering the fare box and three separate follow-up investigations by the Special Investigation and Review Unit, which allegedly observed similar conduct by the plaintiff. The plaintiff has submitted no evidence that might show that the proffered reason was a pretext for retaliation. Instead, the plaintiff asserts that the NYCTA has itself been accused of misstating financial records and that, as a result, the NYCTA was forced to roll back a planned fare increase. The plaintiff does not show, however, how these allegations relate to his termination or how they might be construed to support his" claim that he was terminated because he filed claims of discrimination. The allegations do not cast any doubt on the defendants' assertion that the plaintiff was discharged because he was determined to have misappropriated passenger fares. No reasonable jury could conclude, based on the record as a whole, that the plaintiff was terminated in retaliation for his filing of employment discrimination claims.
The defendants' motion for summary judgment on the plaintiff's retaliation claim must therefore be granted.
VI.
The defendants correctly observe that any claims that the plaintiff asserts under state and city laws are barred by the statutory election-of-remedy provisions in the New York State Human Rights Law ("NYHRL") and the New York City Human Rights Law ("CHRL"). Section 297(9) of the New York Executive Law provides in pertinent part:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person had filed a complaint hereunder or with any local commission on human rights . . . provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division.
N.Y. Exec. L. § 279(9). Similarly, Title 8-502(a) of the New York City Administrative Code provides in pertinent part:
[A]ny person claiming to be aggrieved by an unlawful discriminatory practice . . . shall have a cause of action in any court of competent jurisdiction . . . unless such person has filed a complaint with the city commission on human rights or with the state division of human rights with respect to such alleged unlawful discriminatory practice. . . .
N.Y.C. Admin. Code § 8-502(a).
As the Court of Appeals for the Second Circuit has noted, "by the terms of the statute and code, respectively, the NYHRL and CHRL claims, once brought before the NYSDHR, may not be brought again as a plenary action in another court." York v. Ass'n of the Bar of the City of N.Y., 286 F.3d 122, 127 (2d Cir. 2002). Because the plaintiff has already asserted the discrimination claims he brings here before the NYSHDR, and because the NYSDHR dismissed those claims on the grounds that there was no probable cause to believe that the alleged discrimination occurred, the plaintiff is barred from relitigating those claims pursuant to the NYHRL and the CHRL.
Because the plaintiff's claim of retaliation arose after his complaint was dismissed by the NYSDHR and he plainly did not raise it before the NYSDHR, he is not barred by the election of remedies from raising a claim of retaliation under the NYHRL or the CHRL. However, the elements for establishing retaliation under those statutes are the same as retaliation under the federal statutes. See Treglia, 313 F.3d at 719; Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000); Devlin v. Transp. Communications Int'l Union, Nos. 95 Civ. 0742, 95 Civ. 10838, 2002 WL 413919, at *12 (S.D.N.Y. Mar. 14, 2002). Therefore, any claim of retaliation under the NYHRL and the CHRL is also dismissed for the reasons explained above with respect to the alleged retaliation under the ADA and the ADEA.
CONCLUSION
For the reasons explained above, the defendants' motion for summary judgment is granted. The Clerk is directed to enter judgment dismissing the complaint and closing this case.SO ORDERED.