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finding that disciplinary charges that led to one adverse finding, which could "affect future employment," amounted to an adverse employment action
Summary of this case from Campanella v. Monroe Cnty. SheriffOpinion
00 Civ. 5051 (THK)
June 27, 2002
OPINION
This employment discrimination action was brought under 42 U.S.C. § 1981 and 1983. Plaintiff, Olibanji Ayiloge, claims that he was discriminated against by his supervisors at the New York City Department of Homeless Services as a result of his Nigerian alienage, and that he was retaliated against because of opinions he expressed in the workplace regarding matters of public concern. The parties consented to trial before me, pursuant to 28 U.S.C. § 636 (c), and I conducted a bench trial on December 11-14 and 17-18, 2001.
At the conclusion of the trial, Plaintiff withdrew his equal protection, liberty interest and due process claims, leaving only the First Amendment retaliation and alienage discrimination claims. See Tr. at 1066.
At trial, in addition to Plaintiff and Defendants Anne Lea and Julia Moten, the following witnesses testified: (1) Dr. Jeffrey Rubin, a psychologist who had treated Mr. Ayiloge from January until April of 2000; (2) Marcia Stevenson, Deputy Commissioner of the Department of Homeless Services; and (3) Michael McCray, one of Mr. Ayiloge's former supervisors at the Department of Homeless Services.
The following constitutes the Court's findings of fact and conclusions of law.
FACTS
Plaintiff is a Nigerian immigrant to the United States. He began working at the Department of Homeless Services ("DHS") on July 23, 1990, as a case worker. (Trial Transcript ("Tr.") at 78.) In April of 1993, Mr. Ayiloge was promoted to the position of Provisional Supervisor I. (Id.) Two years later, on July 17, 1995, Plaintiff was confirmed as a Supervisor I and transferred to the Program Implementation Unit of DHS, located in the agency's main office. (Id. at 80.) At the Program Implementation Unit, Plaintiff worked under the immediate supervision of Defendant Anne Lea. (Id. at 82.) Defendant Julia Moten, director of the Program Implementation Unit, was Lea's supervisor. (Id. at 710.)
In 1995, Mr. Ayiloge was the Executive Director of The Nigerian People's Forum, an ex-patriot political organization concerned with Nigerian politics. (Tr. at 89-90.) In that capacity, he authored an article ("Nigerian People's Forum Article"), in which he criticized several prominent African-Americans for their support of the political regime in power at that time in Nigeria. (Plaintiff's Exhibit ("PX") 2.) Sometime in late 1995, Ayiloge gave a copy of this article to Anne Lea, his supervisor at the time. (Tr. at 88, 589.) Lea viewed this gesture as an attempt by Ayiloge to involve her in his political cause. (Id. at 594.) Lea felt that some of the opinions expressed in the article seemed anti-African-American and sexist. (Id. at 601-02.) When subsequently asked her opinion of the article, Lea told Ayiloge that, although she found the article well written, she had no interest in getting involved in his political activities. (Id. at 596.)
Lea also testified that, at about the same time, Ayiloge made a pass at her, which she rebuffed. (Tr. at 605-06.)
Shortly thereafter, Ayiloge's relationship with Lea began to deteriorate. (Id. at 596, 624-25.) He rarely spoke to her and she found him hostile. (Id. at 596, 620-25.) In July of 1996, during a meeting with Lea, Moten, and two other supervisors, at which Ayiloge was criticized for his failure to complete an assignment, Ayiloge exclaimed to Lea, "You cannot supervise me. You are beneath me." (Id. at 615-20, 729-33; PX 52.) As a result, Lea concluded that Ayiloge was "anti-Anne Lea." (Id. at 612.) She considered reporting the incident to the departmental office which dealt with complaints of discrimination, but chose not to. (Id. at 612-14.) Soon thereafter, Ayiloge was reassigned to another supervisor, Reatha Jenkins. (Id. at 729.)
Reatha Jenkins experienced difficulties supervising Ayiloge as well. (Id. at 357-78.) On August 7, 1996, Jenkins wrote Ayiloge a memo noting that he had not completed an assignment he was supposed to have completed by July 10, 1996, purportedly because he claimed not to have the necessary expertise. (Defendants' Exhibit ("DX") A.) The memorandum noted that Ayiloge not only failed to complete the assignment, but also failed to seek assistance in completing the assignment from Julia Moten, who would have had the necessary expertise. (Id.; Tr. at 360-67.)
On October 22, 1996, Ayiloge had an altercation with personnel at the Atlantic Avenue Shelter, where he was conducting a field visit. (Tr. at 472-92; DX B.) After this incident, a complaint was filed against Ayiloge based on incident reports prepared by shelter personnel and other witnesses to the incident. (Id.) These reports, which were forwarded to Julia Moten, indicated that when Plaintiff was asked by a security guard at the facility to present his identification, he refused, prompting the director of the shelter to intervene. (Tr. 472-73, 667, 939-58.) According to the reports, after Mr. Ayiloge again refused to show his identification or identify himself, he threatened the security guard who had stopped him initially, and the police were called. (Id. at 479-89.) However, by the time the police arrived, Mr. Ayiloge had left the shelter. (Id.) In addition to filing a complaint, the shelter staff requested that Mr. Ayiloge no longer serve as an outreach coordinator for that location. (Id. at 956-57.) Mr. Ayiloge met with Ms. Moten on October 30, 1996, to discuss the accusations that had been made regarding this incident, and he was asked to sign a conference memorandum detailing those allegations. (Id. at 939-42.) Although he wrote a lengthy memorandum, on October 23, 1996, setting forth his version of the events, Mr. Ayiloge signed the conference memorandum "in protest," charging that he had not been afforded the opportunity to respond to the allegations made against him. (DX B.) Ms. Moten made efforts to assure that Mr. Ayiloge's view of the incident would be properly recorded, and did not discipline him in any way as a result of this incident. (Tr. at 939-42, 945-46.)
While working under Jenkins' supervision, Plaintiff was also involved in an incident with the director of another shelter, Susan Nayowith, regarding a telephone conversation they had. (PX 38; Tr. at 180-81.) Nayowith complained to her supervisors that Ayiloge had been rude to her and unhelpful during the conversation. (PX 38; Tr. at 938.) In a response memorandum, written to Ms. Moten, Plaintiff alleged that "[Nayowith] will fabricate stories to justify her actions (or inaction) after the fact." (PX 38.) Although the shelter Ms. Nayowith directed stopped participating in the outreach program, no adverse employment action was taken against Plaintiff as a result of this incident. (Tr. at 938.)
After Jenkins left the unit, Mr. Ayiloge was reassigned to a new supervisor, Denise Williams. (Tr. at 378.) Although Mr. Ayiloge testified that he had no problems working with Ms. Williams, it is apparent that their working relationship was also troubled. (PX 99, 100; Tr. at 383-86.) On July 17, 1998, Williams wrote Ayiloge a memorandum, in an attempt to correct a communication problem that had resulted in one of the shelters failing to issue Supplemental Security Income ("S.S.I.") allowances to eligible clients, for a period of six months. Plaintiff responded in a memorandum, indicating that the problems were not his responsibility and that "I am now finding it difficult to continue to believe that you are not a party to the conspiracy against me within the unit." (PX 100.) Plaintiff went on to accuse Ms. Williams of purposely withholding his reports so that he would be accused of having handed them in late. (Id.)
Around this time, Mr. Ayiloge was reassigned to a new supervisor, Michael McCray, who, in turn, reported to Anne Lea. (Tr. at 184.) When informed that Mr. Ayiloge would once again be under her supervision, albeit indirectly, Ms. Lea expressed her discomfort, and wrote a memorandum explaining the problems the two had had in the past. (PX 79.)
Mr. Ayiloge continued to be a problematic employee while under McCray's supervision. Almost immediately after being assigned to work with McCray, Mr. Ayiloge was reprimanded by Anne Lea for taking a vacation without giving proper notice or making arrangements to have someone substitute for him at his previously scheduled shelter visits. (PX 83.) Lea noted that although McCray covered for Plaintiff at the S.S.I. meetings in the shelters, Ayiloge's failure to arrange for someone to take his place during his absence endangered the critical relationships which DHS maintained with the representatives of other government agencies who attended these meetings. Ayiloge replied to these allegations in yet another memorandum, claiming that his vacation had been approved by Lea and McCray. (PX 81; PX 83.) In her response, dated September 30, 1998, Lea characterized Ayiloge's behavior as "unprofessional, irresponsible, and disrespectful to your immediate supervisor." (PX 84.) She went on to write that she would not continue to debate the issue, but that in the future, Mr. Ayiloge should follow agency guidelines for scheduling vacations, and submit a backup plan to ensure that someone could fulfill his duties during the period of his absence. (Id.) In a strongly-worded reply memorandum, Ayiloge accused Lea of libel for suggesting that he might have altered the date on his vacation request form, threatened legal action, and stated that he thought the purpose of Lea's memo was to discredit him. (PX 85.) He wrote, inter alia, that Lea had undertaken "a campaign of calumny," was seeking to point "accusative fingers" at him instead of herself, had a "proclivity to abuse people," and that "[e]very fair-minded person should frown at [her] continuing and relentless attempt to victimize [him]." (Id.) Mr. Ayiloge believed that since he no longer had any staff working under his supervision, and could no longer direct others to fill in for him, his supervisor should be responsible for providing coverage during his vacation. (Id.) Lea took no disciplinary action against Ayiloge because of this incident.
McCray was originally named in the Complaint as a Defendant. However, he was never served with process.
Plaintiff had two subordinate employees when he was initially assigned to the Program Implementation Unit. Due in part to legal problems, one of the employees had to be reassigned to a position which did not involve field work. The other left to take a position with the Department of Corrections. (Tr. at 230.)
As a result of the vacation incident, it was decided that Mr. McCray should be trained by Mr. Ayiloge on how to prepare the appropriate forms for shelter visits, so that should the need arise, McCray could substitute for Ayiloge in the future. However, when McCray approached Ayiloge about being trained, Ayiloge replied that he should not be made responsible for training his supervisor, and that since he himself had not received any training, he did not think it was necessary for McCray to be trained. (Tr. at 411-12.) When told that Ms. Moten, the head of the unit, had directed that he train McCray, Ayiloge is alleged to have replied "so what." When Ms. Moten was told of the exchange, Ayiloge was called in for a conference with McCray and Anne Lea, McCray's supervisor, on September 28, 1998. Ayiloge claims that he was mistreated at this conference, and that the conference had been used as an opportunity for Defendants to "brow-beat" him and "bully [him] into submission." (PX 86.) Once again, a spate of memoranda followed the conference, in which Mr. Ayiloge made accusations about his supervisors, and his supervisors responded. (Id.)
On October 20, 1998, Mr. McCray, while on a visit to the Peter's Place Shelter, decided to seek out Plaintiff, who was scheduled to be at the shelter for an S.S.I. workshop. On his arrival, Mr. McCray was told that Ayiloge's S.S.I. team had left the shelter at 11:30 A.M. (PX H.) However, Mr. Ayiloge never returned to the main administrative office where he worked, opting instead to leave for the day. Nevertheless, on his time sheets, he indicated that he had worked a full eight-hour day. Accordingly, McCray docked him for three missed hours. (Id.)
Mr. Ayiloge filed a union grievance to protest this penalty. During the grievance process, Plaintiff argued that Lea had told him that if he could not return to the main office from a field visit sufficiently in advance of the end of his work day, he could just go home. (Tr. at 661-62.) Lea denied having made that statement, and in a memorandum dated November 20, 1998, she accused Ayiloge of making blanket statements and said that she could make blanket statements of her own. She then alluded to Ayiloge's attempt to involve her in his political activities, because he had once given her a political article that he had prepared. (PX 52.) Lea attached a copy of Ayiloge's Nigerian People's Forum article to her memorandum to Julia Moten, as well as other documents regarding the training session at which Ayiloge claimed Lea told him that he could go directly home when training sessions at shelters ended early. (PX 52.)
The grievance board upheld McCray's decision to dock Ayiloge for having left work early, but did not further penalize him, since he had already been docked for the lost time. (Tr. at 211-12.) The decision was upheld on further appeal. (Id.)
In late 1998, Mr. Ayiloge's union representative contacted Marcia Stevenson, the Deputy Commissioner of DHS, about the problems Ayiloge was having with McCray. He indicated, without any elaboration, that he considered it an equal employment opportunity ("E.E.O.") issue. (PX 53; Tr. at 851-64.) Sometime prior to December 9, 1998, Stevenson forwarded a set of memoranda exchanged between Ayiloge and his supervisors to the Office of Labor Relations, with instructions that they be reviewed for any "improper staff applications of supervisory authority." (PX 53.) On December 9, 1998, Stevenson sent a note to the head of the E.E.O. office, requesting that the matter be reviewed as an E.E.O. issue. (PX 53;.Tr. at 851.) Around this time, Stevenson also contacted Moten, to inquire about what was going on with Ayiloge. (Tr. at 854.)
On January 25, 1999, Moten, accompanied by Assistant Commissioner Laura Mascush, met with a member of the DHS Legal Disciplinary Unit to discuss what Moten considered to be Ayiloge's increasingly disruptive behavior, and to determine whether disciplinary action should be taken against him. (Tr. at 839-40, 962; PX 16.) At this meeting, Moten may have requested that Ayiloge be transferred from her unit. (Tr. at 839, 910.) Gail Clott, the DHS Legal Disciplinary Unit representative, indicated that she would "get back" to Moten, but never did. (Id. at 840.)
On March 17, 1999, Moten sent Ayiloge a memorandum assigning Ayiloge three tasks. One of the assigned tasks was to return all client S.S.I. funds exceeding $2,000 to the Social Security Administration ("S.S.A."). (PX 5.) The due date for this assignment was March 26, 1999. (Id.) In response, Ayiloge sent a memorandum to Moten on March 29, 1999, three days after the assignment was due, with copies to Lea and McCray, stating the opinion, which he had previously taken, that the funds did not need to be returned to S.S.A., and should therefore be retained in order to use them for the clients. (PX 6.) At the end of the document, Ayiloge wrote "May I also say that if you insist on sending these funds back, please let me know. I will begin the process immediately." (Id.) The funds were not returned to S.S.A. at that time.
When individuals are living in shelters, in some cases, DHS is made the representative payee of their social security and supplemental security checks. The money is kept in accounts for the clients, and is used to purchase items needed by them. According to Defendants, when a client has over $2,000 in S.S.I. funds in his account, the excess monies must be returned to the Social Security Administration. (Tr. at 911-13.) Ayiloge took the position that excess funds did not need to be returned, as long as SSA was informed that the client had over $2,000 in his account.
Ayiloge claims he first indicated his disagreement with the unit policy of returning S.S.I. funds to the Social Security Administration in December of 1996. (Tr. at 120-22; PX 2A.) According to Ayiloge, there was no requirement that these funds be returned, and, if they were not returned, they could be used to facilitate the placement of the client in a permanent housing facility. Defendants disagree with this position, stating that if they did not return the funds to S.S.A. they would be violating federal law. Although Ayiloge testified to having subsequently discussed this question with his supervisors, including Julia Moten, there is no other evidence of the subject being discussed again until 1999. (Tr. at 121-26.)
On June 4, 1999, Moten sent a follow-up memorandum to Lea and McCray, with a copy to Ayiloge, identifying a list of clients and stating, "Should funds be returned?" Moten intended for Ayiloge to determine, for each client listed in the memorandum, whether funds in their account needed to be returned to the S.S.A. (Tr. at 669-70; PX 7.) Ayiloge had a conversation with Lea on June 16, 1999, during which she asked why he had not completed the assignment in question. (Tr. at 149.) Apparently believing that Moten's June 4 memorandum was inquiring about the correctness of the policy of returning funds to the S.S.A., Ayiloge belatedly responded to Moten's memorandum with another memorandum, indicating that he had already expressed the opinion that the funds should not be returned to S.S.A. (PX 9.) He also gave replies about the other portions of the assignment. (Id.)
On July 30, 1999, McCray attempted to approach Ayiloge to give him some overdue assignments that needed completion, including the June 4th assignment from Moten. Ayiloge reacted negatively. (Tr. at 1029.) In a subsequent memorandum, McCray described Ayiloge's attitude during their conversation as "negative, defensive and uncooperative." (PX 59.) In the memorandum, dated August 2, 1999, McCray noted that he found it "very difficult to continue working with [Ayiloge] and the consistently negative attitude that [he had]." (Id.) As a result of this incident, both McCray and Lea requested a supervisory conference with Ayiloge and Moten, to discuss Ayiloge's job performance. (PX 59, 61.)
Ayiloge responded to McCray's memorandum, and a similar one from Lea, on August 2, 1999. In this document, Ayiloge charged that Lea, Moten, and McCray were "united in a common goal to continue to harass me," and that they were persecuting him "because of some secret agenda." (PX 64.) The same day, Ayiloge composed a memorandum entitled "Continuing Harassment by Supervisors," which he addressed to Martin Oesterreich, the Commissioner of the Department of Homeless Services. (PX 63.) He sent a copy of the memo to Oesterreich; Marcia Stevenson, the Deputy Commissioner of DHS; Moten; Lea; McCray; and R. Mascali. (Id.) In it, Ayiloge accused his supervisors, Lea, McCray and Moten, of attempting to discredit him and portray him as not carrying out his duties. He contended, in the memorandum, that Moten was using his disagreement with the DHS policy of returning funds to the Social Security Administration as a reason to harass him. He argued that instead of merely instructing him to return the funds, Moten purposely withheld such an instruction and then chastised him for his inaction, through McCray and Lea. (Id.)
At the request of Stevenson, Moten replied to Ayiloge's allegations. (PX 16.) In her memorandum, dated August 10, 1999, Moten detailed Ayiloge's history in the Program Implementation Unit, and indicated that she was requesting that Ayiloge be transferred. (Id.) She wrote that "[a]ny attempt to supervise Mr. Ayiloge and have him assume responsibility for his work assignment results in charges of harassment, discrimination and a memo writing campaign." (Id.; Tr. at 249.) She noted that Ayiloge's problems with his supervisors interfered with her own ability to complete assignments, demoralized supervisory staff in the unit, and set a bad precedent for the other employees. (PX 16; Tr. at 251-56.) Moten attached copies of numerous memoranda that had been exchanged with Ayiloge over various work issues, including Lea's November 20, 1998 memorandum. (PX 16; Tr. at 247.)
Plaintiff's People's Nigerian Forum article was attached to Lea's November 1998 memorandum.
In late August 1999, McCray prepared a yearly performance evaluation of Ayiloge, which was signed by Lea on August 27, 1999, and by McCray on September 3, 1999. (PX 25.) This was the first performance evaluation that had been given to Ayiloge since being assigned to the Program Implementation Unit in 1995. (Tr. at 766-70.) However, performance evaluations were given to all of the employees in the unit in 1999. (Tr. at 1051.) In the evaluation, Ayiloge's performance was rated "good" in all aspects of his job except one. With respect to task 3, described as "[c]oordinates the work of two or more individuals/units/agencies, by providing direction/facilitating good working relationship/conveying information/promoting cooperation, in order to enhance achievement of mutual independent work objectives," Ayiloge was rated "conditional." (PX 25) The justification given for this rating was that "[i]n this area, worker needs to improve on developing good working relations with staff and outside agencies." (Id.) Despite Lea's opinion that Ayiloge should have received lower evaluation ratings, McCray gave these ratings because he believed that he could still work with Ayiloge, and he was reluctant to further damage their relationship. (Tr. at 651-52.) Lea decided to allow McCray's evaluation to stand, since McCray was Ayiloge's direct supervisor. (Id. at 673.)
According to the Department of Homeless Services evaluation instructions, a rating of "conditional" signifies that "[t]he employee's performance did not meet one or more of the attainable standards. This level of performance is not of long duration. It is considered possible that plans to develop knowledge, skills and abilities or to provide assistance will enable the employee to perform the task satisfactorily in the future." (PX 25.)
Ayiloge was dissatisfied with his evaluation, and sent a memorandum to the Evaluation Appeals Board. (PX 25.) In this memorandum, dated September 10, 1999, Ayiloge complained that his supervisors had not followed the correct procedure in preparing his evaluation, since they had not met with him before the evaluation was finalized, in order to include his input. (Id.) In addition, Ayiloge went through each of the evaluation categories and questioned their applicability and the reasoning behind each rating. (Id.) He characterized the evaluation as "unfair, biased, and heavily influenced by malice long harbored against [him] by [his] supervisors." (PX 25.)
On September 28, 1999, disciplinary charges were filed against Ayiloge, charging that he (1) failed to promptly and with due care perform his assigned duties and complete all assigned tasks, by refusing to train McCray and by failing to submit summaries of his shelter visits; (2) falsified his time sheet records on October 21, 1998, the day he left work early; (3) failed to obey lawful orders of his supervisor, by refusing to train McCray and by failing to submit summaries of his shelter visits; and, (4) acted "in a manner that is prejudicial to the good order and discipline or which tends to discredit the City or the Department." (PX 17.)
On August 9, 2000, after an informal conference was held, the conference leader ruled that all four charges had been established, and recommended that Ayiloge be assessed a reprimand. (PX 19.) Ayiloge appealed the ruling, and after a hearing, an arbitrator determined that Ayiloge was only guilty of falsifying his time sheet, but held that no additional punishment was appropriate, since Ayiloge had already been docked three hours for the incident. (PX 20.)
On Friday October 8, 1999, Ayiloge was notified that he was being transferred to the 30th Street Shelter, effective Monday October 11, 1999. (PX 18.) Ayiloge retained his same title and salary. He became the supervisor of the tuberculosis unit. As such, he was assigned an employee to supervise, until she retired. Ayiloge testified that he considered his transfer a demotion, as his chances for future advancement were significantly better at the main office. (Tr. at 279-81.) Nonetheless, Ayiloge admitted that some employees were moved to shelters as promotions, and that Supervisor I positions were common in shelters. Plaintiff is currently employed by the Department of Homeless Services as a Supervisor I.
DISCUSSION
Plaintiff seeks relief under two theories. First, Plaintiff claims that his supervisors, Anne Lea and Julia Moten, retaliated against him for engaging in speech protected under the First Amendment, in violation of 42 U.S.C. § 1983. Second, Plaintiff claims that they discriminated against him because of his alienage, in violation of 42 U.S.C. § 1981.
Although Plaintiff has also named the City of New York as a Defendant, he appears to have abandoned all such claims at trial. See Tr. at 1058-59, 1066. In any event, there was no credible evidence at trial of a discriminatory municipal action, policy, or practice.
At trial, the parties introduced considerable amounts of evidence only peripherally related to Plaintiff's central contentions — that he was discriminated against in retaliation for engaging in protected speech, and as a result of his alienage. Each side attempted to paint a picture that could capture the relationship between Plaintiff and Defendants. Plaintiff attempted to present himself as a hard-working, level-headed, diligent employee, concerned about the plight of the homeless individuals in the care of the Department of Homeless Services, who was perpetually victimized by his scheming, vindictive, and biased supervisors. Defendants portrayed themselves as the fair-minded and frustrated victims of Plaintiff's laziness and insubordination. Faced with an employee who constantly confronted his co-workers, zealously avoided both his work and responsibility for not completing his work, and cried discrimination at the slightest hint of professional criticism, Defendants claim that they dispassionately took whatever steps they could to motivate and accommodate him.
Yet, in the end, the only relevant fact with respect to this Court's decision is this — Plaintiff has simply failed to demonstrate that Defendants took any actions, or showed any animus toward him, in retaliation for his expression of his First Amendment views, or as a result of his alienage. The record demonstrates that although there were numerous disagreements between Plaintiff and Defendants, none of them had anything to do with his First Amendment views or his alienage. Plaintiff has attempted to use alienage discrimination and First Amendment retaliation to tie together a string of unrelated on-the-job incidents, but he has not done so convincingly. The evidence demonstrates that Defendants were almost completely indifferent to Plaintiff's opinions and his alienage.
I. First Amendment Retaliation Claim
Plaintiff contends that his First Amendment rights were violated when he was subjected to adverse employment actions in retaliation for engaging in protected speech. Specifically, he claims that his supervisors brought administrative charges against him, unfairly evaluated his work performance, and arranged his transfer to a shelter, in retaliation for his outspokenness on whether funds in excess of the statutory $2,000 limit contained in DHS clients' accounts should be returned to the Social Security Administration. In addition, Mr. Ayiloge claims that he was retaliated against for expressing his opinion about prominent African-American politicians' views on the political situation in Nigeria.
According to Mr. Ayiloge, the Department of Homeless Services was under no compulsion to return the funds, only to advise the Social Security Administration when the funds limit had been reached. Although Defendants adamantly deny the propriety, and even the legality of not returning these funds to S.S.A., the Court does not have to resolve this question. The issue here is not whose views were correct, but rather, whether Defendants took any adverse employment actions against Plaintiff because of his views, as opposed to his job performance.
The law is clear that while the government enjoys significantly greater latitude when it acts in its capacity as an employer than when it acts as sovereign, the First Amendment nonetheless prohibits it from punishing its employees in retaliation for the content of their protected speech.See, e.g., Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 1884 (1994); Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896 (1987); Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1735-36 (1968); Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999) ("[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment."). To assess the extent to which a state may regulate the speech of its employees, courts must balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1735-36; see also Morris, 196 F.3d at 109-10.
In order to establish a prima facie First Amendment retaliation claim, a plaintiff must show that (1) he engaged in constitutionally protected speech; (2) he suffered from an adverse employment action; and (3) his speech was a motivating factor in the adverse employment action. See Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002); Morris 196 F.3d at 110. "If a plaintiff makes such a showing, the government may nonetheless escape liability on either of two separate rationales: plaintiff's speech would disrupt the government's activities and such disruption is sufficient to outweigh the First Amendment value of plaintiff's speech or the government demonstrates it would have taken the same adverse action in the absence of the protected speech." Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001) (internal citations omitted).
A. Constitutionally Protected Speech
Whether specific speech enjoys a protected status under the First Amendment is a question of law. See Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1691 n. 7; see also Morris, 196 F.3d at 110. "Central to this inquiry is whether the speech may `be fairly characterized as constituting speech on a matter of public concern.'" Morris, 196 F.3d at 110 (quoting Connick, 461 U.S. at 146, 103 S.Ct. at 1690.) As a general rule, speech on "any matter of political, social, or other concern to the community" is protected by the First Amendment. Id. However, "[w]hen an employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of a personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Connick, 461 U.S. at 147, 103 S.Ct. at 1690.
"In making its determination, the court should focus on the motive of the speaker, attempting to discern whether the speech was calculated to redress personal grievances or whether it had a broader public purpose."Iannillo v. County of Orange, No. 00 Civ. 5072 (WCC), 2002 WL 313202, at *6 (S.D.N.Y. Feb. 25, 2002). After determining that the speech addresses a matter of public concern, the court must then balance the "interests of the employer in providing `effective and efficient' public services against the employee's First Amendment right to free expression." Lewis v. Cowen, 165 F.3d 154, 161 (2d Cir. 1999) (quoting Connick, 461 U.S. at 150, 103 S.Ct. at 1692). In balancing the interests, the Court should consider whether the disputed statement "impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships . . . or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2899 (1987). The employer bears the burden of showing a "likely interference" with governmental functions. See Lewis, 165 F.3d at 162.
Although Mr. Ayiloge complained about a Department of Homeless Services internal policy, the issue involved was not one that related to his personal working conditions. Mr. Ayiloge had no personal stake in whether funds were returned to the Social Security Administration or kept in client accounts until they could be used for the client. Whether his analysis of the underlying law was correct or not, the manner in which Social Security funds are handled by a state agency is a matter of public concern. Cf. A.F.C. Enters., Inc. v. New York City School Constr. Auth., No. 98 Civ. 4534, 2001 WL 1335010, at *15 (E.D.N.Y. Sept. 6, 2001) (agency management policies and the waste of public monies can be matters of public concern); Iannillo, 2002 WL 313202, at *10 (potential abuse in the allocation of public funds can be matter of public concern). Thus, Plaintiff's speech regarding the retention of S.S.I. funds by D.H.S. was protected under the First Amendment. The same is true regarding his statements about the political situation in Nigeria. Cf. Branti v. Finkel, 445 U.S. 507, 519, 100 S.Ct. 1287, 1295 (1980) (individual may not be fired on the sole ground of his political beliefs). Political speech, such as the criticism of prominent politicians with respect to their views on public policy, is the clearest example of speech protected by the First Amendment. See, e.g., Elrod v. Burns, 427 U.S. 347, 360, 96 S.Ct. 2673, 2683 (1976) (employees may not be fired in retaliation for political affiliation or political speech).
B. Adverse Employment Action
"Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand," Morris, 196 F.3d at 110, as well as "any action that affects promotions, transfers, and recalls after layoffs." Dauber v. Bd. of Ed. of the City of New York, No. 99 Civ. 3931 (LMM), 2001 WL 1246581, at *6 (S.D.N.Y. Oct. 18, 2001) (citing Rutan v. Republican Party of Ill., 497 U.S. 62, 75, 110 S.Ct. 2729, 2737 (1990)). Although the Second Circuit has held that lesser actions may meet the adverse action threshold, it has not explicitly defined what quantum of lesser actions constitutes an adverse employment action. See Phillips, 278 F.3d at 109. In its most general terms, "a materially adverse change in the terms and conditions of employment" is considered an adverse employment action. Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (internal quotation marks omitted); see also de la Cruz v. New York City Human Res. Admin. Dep't of Soc. Serv., 82 F.3d 16, 21 (2d Cir. 1996). An action "injurious to current employment or the ability to secure future employment" may also be considered adverse.Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). In this vain, the Second Circuit has held that a downgrade in evaluation can constitute an adverse employment action. See Morris, 196 F.3d at 110. "[I]n a situation other than the classic examples of discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand, plaintiff must show that (1) using an objective standard; (2) the total circumstances of her working environment changed to become unreasonably inferior and adverse when compared to a typical or normal, not ideal or model, workplace." Phillips, 278 F.3d at 109.
Here, Plaintiff claims that Defendants took three adverse employment actions against him: (1) they caused him to be transferred out of the Program Implementation Unit, (2) they brought him up on disciplinary charges, and (3) they gave him a negative performance evaluation.
Not all employee transfers are tantamount to an adverse employment action, even if they are involuntary. See, e.g., Galabya v. New York City Bd. of Ed., 202 F.3d 636, 640 (2d Cir. 2000) (holding that plaintiff's transfer from one special education school to another was not an adverse employment action); Chu v. City of New York, No. 99 Civ. 11523 (DLC), 2000 WL 1879851, at **6-7 (S.D.N.Y. Dec. 27, 2000) (holding that plaintiff failed to establish that transfer within units of New York City Police Department was an adverse employment action). "In involuntary transfer cases, the inquiry focuses on whether the transfer constitutes a `negative employment action tantamount to a demotion.'" Clarke v. City of New York, No. 98. Civ. 3715, 2001 WL 876926, at *5 (E.D.N.Y. Aug. 1, 2001) (quoting Patrolmen's Benevolent Ass'n v. City of New York, 74 F. Supp.2d 321, 335 (S.D.N.Y. 1999)). "The materiality of a transfer cannot be demonstrated where a plaintiff offers `no evidence, save his own unsupported, conclusory statements, that his new position is any less prestigious or that his duties have been significantly altered.'" Id.
In the instant case, Plaintiff has not shown, by a preponderance of the evidence, that his transfer constituted an adverse employment action. Mr. Ayiloge admitted that neither his salary nor his title were affected by his transfer. Although the transfer may have resulted in a change in Ayiloge's duties, this change is not tantamount to a demotion. Moreover, Plaintiff failed to show that a Supervisor I placed in a shelter was less likely to be promoted, or that his reputation had been damaged as a result of his transfer. In fact, apart from his subjective view of the transfer, Plaintiff presented no evidence to support his claim that the transfer constituted a demotion. On cross-examination, he admitted that his transfer led to an increase, rather than a decrease, in the number of employees he supervised. See Tr. at 583-84. In addition, Mr. Ayiloge testified that one of his former colleagues had recently been promoted from a position at the main office to a position at a shelter, thereby undermining his contention that a transfer out of the main office constituted a demotion per se. See id. at 286-87. Finally, Mr. Ayiloge admitted to applying for a position at the 30th Street Shelter while still a Supervisor I in the Program Implementation Unit. See id. at 304. Therefore, Plaintiff's contention that his transfer to the shelter constituted an adverse employment action is not supported by the record.
Defendants contend that Mr. Ayiloge's 1999 performance evaluation was not an adverse employment action because, on the whole, it was not a negative evaluation, particularly in light of his on-the-job performance. In fact, both Ms. Lea and Ms. Moten testified that they considered the evaluation too positive, but that they deferred to Mr. McCray, who believed that a better evaluation would facilitate working with Plaintiff. See Tr. at 673-74, 771-73.
McCray gave Plaintiff what he considered to be a fairly positive evaluation because he thought he could continue to work with Ayiloge. The evaluation stated that Ayiloge's overall performance for all tasks except one was "good." Only for one task was his performance rated "conditional." Mr. Ayiloge testified that he believed this evaluation to be negative and retaliatory. Defendants, on the other hand testified that, overall, they viewed the evaluation as fairly positive. See Tr. at 673-74, 771-73. In view of the contradictory testimony, and the lack of competent evidence demonstrating any negative ramifications of the evaluation, the Court cannot conclude that the evaluation constituted an adverse employment action. Clearly, the evaluation is not sufficiently critical of Ayiloge to be considered retaliatory on its face. Nor is there any evidence of disparate treatment in preparing the evaluation. Had Plaintiff shown that he was the only employee to receive a rating of "conditional" in one area, or not to have received a higher cumulative rating, there may have been a basis to conclude that the performance evaluation constituted an adverse employment action. Plaintiff presented no such evidence. Thus, Plaintiff has failed to demonstrate that his performance evaluation constituted an adverse employment action.
Plaintiff also claims that the disciplinary charges filed against him constituted an adverse employment action. Defendants respond that, since Plaintiff was eventually cleared of most of the charges, and was assessed no additional punishment for the one charge of which he was found guilty, the disciplinary procedure does not constitute an adverse employment action. The Court disagrees. The disciplinary charges led to one adverse finding, which may carry a stigma and affect future employment. Plaintiff was found to have violated department policy, in the Step II determination, with regard to the falsification of his timesheet on the day he left work early. This ruling is sure to remain in his employment file, and may affect future promotions. Thus, the filing of disciplinary charges against Ayiloge constitutes an adverse employment action. See, e.g., Garrett v. Mazza, No. 97 Civ. 9148 (BSJ), 2001 WL 123862, at *3 (S.D.N.Y. Feb. 13, 2001) (holding that disciplinary charges against an employee may constitute an adverse employment action);compare Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir. 1996) (filing of internal disciplinary charges did not constitute an adverse employment action where they had not yet been adjudicated, since the employee would suffer no adverse consequence from them if they were eventually dismissed).
C. Causal Connection Between the Protected Speech and the Adverse Employment Action
In order to succeed on a claim of First Amendment retaliation, Plaintiff must also show, by a preponderance of the evidence, that the adverse employment actions complained of were causally related to the protected speech in which he engaged. "The causal connection must be sufficient to warrant the inference that the protected speech was a substantial motivating factor in the adverse employment action, that is to say, the adverse employment action would not have been taken absent the employee's protected speech." Morris, 196 F.3d at 110. "Causation may be established either indirectly by means of circumstantial evidence . . . or directly by evidence of discriminatory animus." Id.
"[A] plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action."Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001) (internal quotation omitted). There is no "bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action." Id. However, "[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2d Cir. 2001); Ponniah Das v. Our Lady of Mercy Med. Cntr., No. 00 Civ. 2574 (JSM), 2002 WL 826877, at *12 (S.D.N.Y. Apr. 30, 2002.) ("Proximity in time alone will not support a finding . . . that a plaintiff has proved a causal connection between protected activity and an adverse employment action.").
Moreover, even if the plaintiff is able to show a causal connection between the protected speech and the adverse employment action, the employer may avoid liability by showing "by a preponderance of the evidence that it would have reached the same decision as to [the employment action] even in the absence of the protected conduct." Mount Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576 (1977); see also Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000).
In the instant case, Plaintiff has not produced any evidence, beyond the temporal proximity of the filing of the administrative charges against him in September 1999, to the time he sent a letter to the Commissioner of the Department of Homeless Services, in August 1999, to support the inference that the administrative charges, or any of the other alleged adverse employment actions, were causally related to his engaging in protected speech about S.S.I. funds. Moreover, the Court declines to draw an inference of First Amendment retaliation from the temporal proximity between these two events, since Mr. Ayiloge's letter to the Commissioner was about how he was being treated on the job, and not an expression of his views on matters of public concern. See Connick, 461 U.S. at 146, 103 S.Ct. at 1690. In addition, the record indicates that the process leading to the filing of administrative charges was begun in January of 1999 — months prior to Plaintiff's March 26, 1999 memorandum to Julia Moten, expressing his views about S.S.I. benefits, and his August 2, 1999 memorandum to the Commissioner.See Slattery, 248 F.3d at 95 (no inference of retaliation where plaintiff was placed on probation and fired a short time after filing an E.E.O.C. complaint since the adverse employment actions were part of an extensive period of progressive discipline which began a full five months prior to plaintiff's engaging in a protected activity); Ponniah Das v. Our Lady of Mercy Med. Cntr., No. 00 Civ. 2574 (JSM), 2002 WL 826877, at *12 (plaintiff failed to show inference of discrimination even though firing was temporally proximate to protected speech, since there was ample evidence that the defendants were dissatisfied with plaintiff's work performance prior to his engaging in the protected activity).
Plaintiff's claim relates to alleged retaliation for his expression of his views about S.S.I. policy and Nigerian politics, not retaliation for his complaints about the way he was being treated on the job.
There is virtually no evidence supporting Plaintiff's contention that his protected speech was a motivating factor leading to his disciplinary charges. Plaintiff argues that the disciplinary charges were based on false facts and allegations contained in Moten's August 10, 1999 memorandum to the Deputy Commissioner of DHS, and its attachments. However, even if the disciplinary charges were based, in part, upon Ms. Moten's memorandum, there is nothing in the record to support the contention that the memorandum was sent to retaliate for Mr. Ayiloge's protected speech. Moten prepared the memorandum at the behest of Stevenson, who asked her to prepare a summary of Mr. Ayiloge's interactions with his supervisors in order to assess his complaints of harassment. Thus, if the disciplinary unit became aware of past incidents involving Mr. Ayiloge through Moten's August 10, 1999 memorandum, it was because of the investigation of Mr. Ayiloge's claims. Moreover, there is no convincing evidence to indicate that the statements made in Moten's August 10 response to Mr. Ayiloge's August 2, 1999 memorandum were unfounded or retaliatory. They merely provided a chronology of Plaintiff's problems in the Program Implementation Unit, based on memoranda contained in his personnel file, and her overall assessment of Ayiloge as an employee.
As an alternate theory, Plaintiff claims that the adverse employment actions to which he was subjected were a reaction to the Nigerian People's Forum article that he authored, which was given to Anne Lea in 1996. According to) Plaintiff, the article led Defendants to believe that he was anti-African-American and sexist, and that as a result, they bore a grudge against him for years, waiting only for the opportunity to punish him. He points to a pattern of unfair treatment, which he claims includes memoranda containing false accusations against him, conflicting and impossible work assignments, and incidents of mockery and ridicule, as well as the aforementioned alleged adverse employment actions.
Having considered the evidence, the Court does not find this account credible. The record indicates that most of the supervisors and co-employees with whom Plaintiff had negative encounters had no knowledge of his political views. As for the only two supervisors who saw Mr. Ayiloge's article during the period in question — Ms. Moten and Ms. Lea — they were entirely credible in their testimony that Plaintiff's political views about Nigeria and African-American politicians were of no interest to them and had nothing to do with their job-related actions. Mr. Ayiloge, while sincere in his political views, clearly overestimates the level of interest they provoked in his supervisors.
Had Defendants wanted to retaliate against Ayiloge for allegedly sexist and anti-African American statements he made in his political manifesto, they did not need to wait three years to do so. In fact, the evidence shows that Defendants had other opportunities to legitimately discipline Ayiloge, but chose not to do so. Had his statement to Lea, that "she was beneath him," been reported immediately, serious consequences might have followed. Likewise, had Moten been so inclined, the incident at the Atlantic Avenue Shelter might have had severe consequences for Ayiloge. On at least one occasion, Lea intervened on Ayiloge's behalf in a dispute Ayiloge was having with a Shelter Director. See Tr. at 668. Therefore, Plaintiff's contention that a consistent pattern of discriminatory conduct emerged after Lea was shown the Nigerian People's Forum article in 1996, is unsupported by the record and totally unconvincing.
In short, Plaintiff has not presented any credible evidence to suggest that Defendants' critique of his job performance or filing of disciplinary charges against him were related to his views on either the political situation in Nigeria, or the Department's treatment of SSI funds.
D. Legitimate Non-Retaliatory Motivation
Finally, even if Plaintiff had established a prima facie case of First Amendment retaliation, Defendants have demonstrated that they had legitimate, non-retaliatory reasons for taking the actions complained of by Mr. Ayiloge. Defendants contend that the administrative charges were filed against Ayiloge because there was significant evidence that Ayiloge had violated departmental policies.
At trial, much time was spent on the events surrounding the alleged violations of departmental policies. The circumstances surrounding these alleged violations were somewhat muddled, and Mr. Ayiloge's denials of wrongdoing were vehement in each situation. The Court need not decide the merits of each party's position with respect to the numerous incidents mentioned at trial. What is clear is that there is virtually no credible evidence that these incidents, or their consequences, were related in any way to Plaintiff's expression of his First Amendment views. In each situation, the disciplinary unit had a reasonable basis for investigating the charges against Plaintiff. The alleged violations were all documented in memoranda, including some written by Plaintiff. Plaintiff is unable to appreciate that it was how he performed his duties, rather than his opinions about his duties, that concerned Defendants.
Defendants have also demonstrated that the other actions complained of by Mr. Ayiloge, his transfer and the performance evaluation, were legitimately motivated. Stevenson and Moten both testified that the transfer occurred because DHS decided to close the Program Implementation Unit. See Tr. at 876, 885. In fact, Plaintiff was one of a number of employees transferred at this time. See id. at 885. In any event, Plaintiff's eventual transfer was inevitable, since there were no longer any supervisors in Moten's unit with whom Plaintiff could work. No fewer than four different supervisors found him difficult to supervise.
Plaintiff's performance evaluation, in the one area that could be considered negative, was based on Plaintiff's on-the-job problems in dealing with his co-workers and shelter personnel. All of these problems are well-documented in memoranda to and from Mr. Ayiloge during the applicable period, and were supported by credible testimony at trial.
Moreover, the Court found Defendants' account of the circumstances surrounding the work incidents involving Plaintiff far more convincing than Mr. Ayiloge's account. Plaintiff arrived at his First Amendment retaliation theory in an attempt to explain his work-related problems with many different people. However, the incidents are too numerous and varied, and involve too many different individuals, most of whom had no knowledge of his political views, to support Mr. Ayiloge's contention that he was the victim of First Amendment retaliation in each situation.
Plaintiff bears the ultimate burden of establishing, by a preponderance of the evidence, that Defendants' explanations are pretextual, and that the adverse employment actions taken against him were motivated by a desire to retaliate against him for the expression of protected speech. Plaintiff has clearly not met this burden.
II. Alienage Discrimination Claim
Plaintiff also claims that he was discriminated against as a result of his Nigerian alienage. As a Nigerian, he contends that he was considered different from his African-American supervisors, and viewed as anti-African-American and sexist. This distinction, he argues, is evident from Defendants' reaction to his article for the Nigerian People's Forum. Plaintiff claims that because of his Nigerian alienage; Defendants unfairly reprimanded him for contrived workplace deficiencies, filed administrative charges against him, and arranged for him to be transferred to a less desirable job.
42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, prohibits alienage discrimination in, inter alia, the making and enforcement of contracts, including contracts of employment. See Anderson v. Conboy, 156 F.3d 167, 169 (2d Cir. 1998). In order to establish alienage discrimination under § 1981, a plaintiff must demonstrate (1) that he is an alien; (2) an intent to discriminate on the basis of alienage by the defendant; and (3) that the discrimination interfered with his right to make and enforce contracts. Cf. Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993), cert. denied, 516 U.S. 824 (1995) (involving race discrimination); Belgrave v. City of New York, No. 95 Civ. 1507, 1999 WL 692034, at *37 (E.D.N.Y. Aug. 31, 1999).
Alienage discrimination must be distinguished from national origin discrimination, which is based solely an individual's birthplace or nation of origin, and is not prohibited by § 1981. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 2028 (1987);Anderson, 156 F.3d at 171 n. 5; cf. Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 91, 94 S.Ct. 334, 338 (1973) (distinguishing national origin discrimination from alienage discrimination). Alienage discrimination involves discriminating against an individual on the basis of their foreign citizenship. An alien is defined as "[a]ny person not a citizen or national of the United States." Black's Law Dictionary, 6th Ed. 1990; see also Sugarman v. Dougall, 413 U.S. 634, 641, 93 S.Ct. 2842, 2847 (1973); Inglis v. Trs. of Sailor's Snug Harbor, 28 U.S. 99 (1830);U.S. ex rel. Marks v. Esperdy, 315 F.2d 673, 676 (2d Cir. 1963) ("If Marks lost his American citizenship by virtue of service in the Cuban Armed Forces, as we are constrained to hold that he did, he became an alien in 1959 at the time the expatriating acts were committed, not at the time his alienage was judicially determined.")
Typically, claims of discrimination under § 1981 are subject to the three-part burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). See Better Env., Inc. v. ITT Hartford Ins. Grp., 96 F. Supp.2d 162, 169 (N.D.N.Y. 2000). Under this test, a plaintiff must first establish a prima facie case of discrimination. The burden then shifts to the defendant to provide a legitimate non-discriminatory explanation for the challenged conduct. If the defendant provides such an explanation, the burden shifts back to the plaintiff to show that the explanation offered by defendant is merely pretextual. However, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains at all times with the employee and, in the final analysis, the trier of fact must decide which party's explanation of the employer's motivation it believes. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 875, 104 S.Ct. 2794, 2799 (1984).
A. Member of a Protected Class
Plaintiff claims that he was discriminated against as a result of his Nigerian alienage. However, Plaintiff failed to produce any evidence regarding his citizenship. At trial, witnesses testified that Ayiloge was "from Nigeria," that he had received a university degree in Nigeria, and that he was involved in the Nigerian ex-patriot community; but there was simply no testimony as to Ayiloge's actual citizenship. Nor did Plaintiff adduce any evidence indicating that Defendants believed that he was not a citizen of the United States. He has been in the United States since at least 1985, and has been working for DHS since 1990. See Tr. at 77.
During his closing argument, Plaintiff's attorney posited a somewhat different claim, suggesting that the discrimination was based on factors lying somewhere between race and alienage. See Tr. at 1075, 1078. The principle distinction asserted was between Plaintiff as a native West African and Defendants as African-Americans. This theory is apparently based on an erroneous reading of Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, which recognizes an expansive definition of race, not alienage, under 42 U.S.C. § 1981. The Court need not determine the viability of such a claim under § 1981, since, as explained below, Plaintiff has not met his burden of establishing that the actions complained of were motivated by anything other than his own on-the-job behavior.
Although Defendants have not argued that Mr. Ayiloge is not a citizen of Nigeria, or that he is a citizen of the United States, they are not required to do so. Defendants, instead, correctly contend that Plaintiff failed to meet his burden of proving that he is a member of a protected class. See Tr. at 1077-78. In order to establish a prima facie case of alienage discrimination, Plaintiff was required to show that he is not a citizen of the United States. See Robinson v. N.Y.P.D. Personnel Employment Div., 99 Civ. 1654 (DLC), 1999 WL 1044361, at *1 (S.D.N.Y. Nov. 18, 1999) (dismissing a discrimination claim where the plaintiff failed to identify himself as a member of a protected class); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 265 (S.D.N.Y. 1999) (in order to assert a claim under § 1981, a plaintiff must either demonstrate that he is a member of a protected class, or demonstrate that he suffered an injury as a result of discrimination against a protected class). He has not done so. B. Intent to Discriminate on the Basis of Alienage
Mr. McCray's testimony about knowing that Plaintiff was from another country, see Tr. at 1038, is insufficient to establish Ayiloge's foreign citizenship.
In addition, Plaintiff has not demonstrated that Defendants intended to discriminate against him based on his alienage. Even if the Court were to assume that Defendants were aware that Ayiloge was not an American citizen, there is simply insufficient evidence of discriminatory animus to support an inference of intentional discrimination.
To support his claim that the mistreatment he suffered stemmed from Defendants' bias against him as a Nigerian alien, Plaintiff points to four occurrences: (1) Defendants' reactions to the Nigerian People's Forum article; (2) Ms. Moten's reaction to his disapproval of the Million Man March; (3) previous problems that Mr. McCray allegedly had with other Nigerians at DHS; and (4) Ms. Moten's negative reaction to his foreign credentials at his employment interview.
Mr. Ayiloge's assertion that Moten dismissed his foreign credentials as worthless during a job interview occurring several months before Mr. Ayiloge was transferred to Moten's unit, see Tr. at 83-88, does not hold up against Moten's far more credible account of the interview. See Tr. at 716-19. She testified that as a member of the interview, panel, she had no need to question candidates' credentials, since they were verified by the personnel office, and that Mr. Ayiloge would have been asked about how his past experiences qualified him for the particular position he was applying for.
Plaintiff's article for the People's Nigerian Forum, which Plaintiff claims is at the root of Defendants' animus towards him, was given to Defendant Lea in late 1995, and to Defendant Moten in November of 1998. Plaintiff claims that as soon as the document was shown to Lea, his relationship with her began to deteriorate. However, since the principal acts complained of — the transfer, evaluation, and the filing of the administrative charges — did not occur until 1999, when Plaintiff was no longer under Lea's direct supervision, Plaintiff has shown no temporal or other causal connection between the article, his citizenship and the allegedly adverse acts. Moreover, Ms. Lea credibly testified that her relationship with Plaintiff began to deteriorate as a result of Mr. Ayiloge's increasingly hostile treatment of her. Even if the Court were to accept Mr. Ayiloge's view that Anne Lea found the document to be anti-African American, Plaintiff has not shown that Lea, or any of the other Defendants, took any job-related action against him because of the article, or because he was not a U.S. citizen.
Given Mr. Ayiloge's Statement to Lea that "you cannot supervise me, you are beneath me," Lea clearly had an independent basis for concluding that Ayiloge was anti-African-American and sexist, wholly apart from his being Nigerian. What Plaintiff has lost sight of is that it was not his alienage or his political views that led to friction with his supervisors. He was disrespectful, insubordinate, and involved his supervisors in protracted debate and controversy over routine work tasks.
Plaintiff's contention that the alienage discrimination was continuous from 1995 until the time of his transfer is conclusory and unsupported by any evidence. During the four years that Mr. Ayiloge worked in the Program Implementation Unit, he can only point to two comments he claims reflect animosity based on alienage. The first relates to an incident that occurred on the day of the Million Man March, when Ms. Moten allegedly asked Ayiloge why he did not go to the March, and noted that she believed that all black men should go. See Tr. at 167-68. The second related to his claim that Anne Lea teased him in front of other employees by saying that he walked around like a king. See id. at 164-67. Neither of these episodes relates to his alienage. It is also telling that another Nigerian employee, who worked in the Program Implementation Unit during the same period of time, did not appear to suffer the same alleged discrimination. See id. at 958-59.
Although Plaintiff contends that McCray had confrontations with two other Nigerian employees, one of the incidents occurred ten years earlier; there is no evidence that either incident was related to the employees' alienage; and Mr. McCray testified that he now has a good relationship with each of the employees, who are still employed by DHS.See Tr. at 1044-45. Moreover, Mr. McCray is not even a defendant in this action.
Plaintiff also claims that he was deprived of a computer and lacked subordinate employees because of his alienage. There is no evidence to support this contention. Plaintiff was not the only employee without a computer, and it is clear that his job title alone did not merit his being assigned a subordinate employee, where he had no need for one. Moreover, no negative inference can be drawn from the manner in which Plaintiff's subordinates were removed from his supervision. One had to be removed from his position to protect DHS from potential legal liability, and the other left voluntarily when she obtained a better position.
Even Mr. McCray, Mr. Ayiloge's supervisor, was not given a computer. See Tr. at 504.
In sum, there is simply nothing in the record to support Plaintiff's conjecture that he was discriminated against by Defendants on the basis of his alienage. As set forth in Section I, supra, the record makes clear that the problems that Plaintiff experienced with his supervisors and his co-workers arose, for the most part, from his on-the-job conduct and resistance to supervision. Whether or not valid, Plaintiff's disagreement with his supervisors' assignments and expectations does not give rise to an inference of unlawful retaliation or discrimination. His claim must therefore fail.
CONCLUSION
Plaintiff has not shown that he was discriminated against on the basis of his alienage, in violation of 42 U.S.C. § 1981. Nor has he shown that he was retaliated against for engaging is activities protected under the First Amendment, in violation of 42 U.S.C. § 1983. Accordingly, judgment shall be entered for the Defendants.
SO ORDERED.