Opinion
19-CV-8646 (LJL) (VF)
07-26-2023
MIANKANZE BAMBA, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY-FPS, ALEJANDRO MAYORKAS, Secretary of the Department of Homeland Security, Defendants.
TO THE HONORABLE LEWIS J. LIMAN, United States District Judge:
REPORT & RECOMMENDATION
VALERIE FIGUEREDO, UNITED STATES MAGISTRATE JUDGE
Defendant Alejandro Mayorkas, Secretary of the Department of Homeland Security moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(a) against Plaintiff Miankanze Bamba.Plaintiff asserts two claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (“Title VII”): (1) a claim of race and sex discrimination, due to Defendant's failure to select him for promotion, and (2) a hostile-work-environment claim based on animus towards Plaintiff because he is Black. For the reasons that follow, I recommend that Defendant's motion be GRANTED.
On June 19, 2023, the parties submitted a joint letter informing the Court that Plaintiff is “abandon[ing] any claims asserted against the U.S. Department of Homeland Security-FPS,” and thus is only asserting claims against Secretary Mayorkas. See ECF No. 92; see also Correa v. Carnahan, No. 22-CV-10213 (ALC), 2022 WL 17805623, at *1 (S.D.N.Y. Dec. 19, 2022) (“Employment discrimination actions brought by government employees under Title VII . . . must be brought against the head of the agency in which the allegedly discriminatory acts occurred.”) (citation omitted).
BACKGROUND
The following facts, taken from admissible materials submitted in connection with the pending motion, are either undisputed or viewed in the light most favorable to Plaintiff, the nonmoving party. Local Civil Rule 56.1 requires that the party opposing a motion for summary judgment submit a statement responding to the moving party's statement of material facts, indicating which facts are admitted and which facts the opposing party contends are in dispute and require a trial. See Local Civ. R. 56.1(b). Local Rule 56.1 also permits a counterstatement of “additional material facts as to which it is contended that there exists a genuine issue to be tried.” See id. Although Plaintiff's counsel did not submit a response to Defendant's Rule 56.1 Statement, Plaintiff's memorandum of law in opposition includes a section titled “Genuinely Disputed Material Facts.” See Pl.'s Br. at 6-8, ECF No. 89. Despite Plaintiff's failure to follow the Court's procedural rules, the factual background recounted herein includes any genuine issues of material fact raised by Plaintiff in his memorandum of law. See In re Parikh, No. 09-MC-0227 (JFB), 2009 WL 2383032, at *2 (E.D.N.Y. July 30, 2009) (“[T]he Second Circuit has steadfastly maintained that it is acceptable for a district court to overlook failure to comply with [Local Rule 56] in favor of an independent review of the record to determine whether disputed issues of material fact exist.”); NAACP Legal Def. & Educ. Fund, Inc. v. U.S. Dep't of Hous. & Urb. Dev., No. 07-CV-3378 (GEL), 2007 WL 4233008, at *1 (S.D.N.Y. Nov. 30, 2007) (“[I]t is well established that the Court has wide discretion to consider a summary judgment motion regardless of a party's compliance with the local rules.”) (citation omitted).
In September 2008, Plaintiff, a Black man, accepted a position as a “Financial
Program/Cost Analyst,” a “General Schedule-13” (“GS-13”) position, with the Federal Protective Service (“FPS”), an agency within the Department of Homeland Security (“DHS”). See R. 56.1 Statement ¶ 1, ECF No. 78; Pl.'s Br. at 4, ECF No. 89; Bamba Dep. Tr. at 92-93, ECF No. 84-14 (Ex. N).The position was in New York City. See R. 56.1 Statement ¶ 1.
Although there is no undisputed fact in Defendant's 56.1 statement concerning Plaintiff's race, Defendant does not dispute that Plaintiff is Black. See Def.'s Br. at 1, ECF No. 77.
a. The March 5, 2018 Incident
On March 5, 2018, James Ward, the then-Risk Management Branch Chief for Region 2 of FPS, sent Plaintiff an e-mail about a funding request. R. 56.1 Statement ¶ 23. Plaintiff replied to Ward's e-mail, stating that the requested funding was not available. Id. Ward then came to Plaintiff's office and insisted that Plaintiff provide him the funding he had requested. Id. ¶ 24. Plaintiff again informed Ward that the funding was not available. Id.
Region 2 is the Northeast/Caribbean region, and includes New York, New Jersey, Puerto Rico, and the Virgin Islands. See R. 56.1 Statement ¶ 1.
Although Plaintiff does not dispute the facts recounted above, the parties disagree as to how to characterize the event that occurred in Plaintiff's office, following the e-mail exchange. According to Defendant, Plaintiff and Ward had a “heated argument” after Plaintiff told Ward that no funding was available. Id. ¶ 25. Plaintiff, however, characterizes the “heated argument” as an assault. See Pl.'s Br. at 5. In his opposition brief, Plaintiff provides a fuller, more detailed narrative of the alleged assault. See Pl.'s Br. at 5; see also Bamba Dep. Tr. at 52-55, 60-62, 10708. Defendant does not take issue with or address Plaintiff's narrative in his reply brief.
According to Plaintiff, after denying Ward's repeated requests for funding, Ward became “infuriated,” began screaming at Plaintiff, and “attempted to unlock his firearm from his holster.” See Pl.'s Br. at 5. Plaintiff, who feared for “his safety and his life,” called 911. Id. Ward pushed Plaintiff into his chair, spun him around, and grabbed the phone. Id. Plaintiff alleges that Ward stood in front of him with one hand on his firearm and the other on the phone. Id. According to Plaintiff, his supervisor, Jason Martinez, was present for the altercation but did nothing to “intervene, redirect, prevent, deescalate, or thwart” Ward's “belligerent” conduct. Id.
Following this incident, Ward was placed on indefinite suspension by FPS while the agency conducted an investigation. See R. 56.1 Statement ¶ 26. Ward never made an offensive statement to Plaintiff about Plaintiff's skin color or race either during this confrontation or at any other time. Id. ¶ 27. Plaintiff further claims that Ward has a history of harassing behavior, pointing to a 2016 e-mail thread between Ward and Plaintiff and Ward's history of bullying and assaulting other minority employees, including two other black employees (Jean Nsima and an unnamed security guard). See Pl.'s Br. at 5-8.
b. Plaintiff's Non-Selection for the Supervisory Program Manager Position
On April 20, 2018, the United States Office of Personnel Management (“OPM”) posted an opening for the position of “Supervisory Program Manager (Mission Support)” in Region 2 of FPS, a “GS-14” level position. See R. 56.1 Statement ¶ 2. The April 2018 announcement indicated that applications for the position would be accepted from April 20, 2018, to October 22, 2018. Id. To be qualified for the position, the April 2018 announcement indicated that applicants had to have at least one year of specialized experience equivalent to the GS-13 level in the federal service that included: (1) directing and/or overseeing the activities and processes of administrative mission support functions; (2) analyzing/evaluating administrative program operations and recommending new or revised policies and procedures; and (3) providing leadership or supervision to employees. Id. ¶ 3. Applicants also had to satisfy a “Time-in-Grade” requirement. Id. The Time-in-Grade requirement mandated that applicants demonstrate that they had served 52 weeks at the GS-13 grade level. Id.
Applicants were instructed to submit with their applications their most recent “Notification of Personnel Action” form, also known as a Standard Form 50 (“SF-50”), as well as an SF-50 that showed proof of their Time in Grade. Id. ¶ 4. The April 2018 announcement warned applicants that while an “Award SF-50” may be an applicant's most recent SF-50, an “Award SF-50” typically does not show proof of Time in Grade. Id. For this reason, the announcement informed applicants that they might have to submit more than one SF-50 in order to demonstrate that they satisfied the Time-in-Grade requirement. Id.
On April 25, 2018, Plaintiff submitted an online application for the open position. Id. ¶ 5. Plaintiff submitted only one SF-50: an “Award SF-50” notifying him of an individual cash award he received in March 2015. Id. The Award SF-50 did not indicate Plaintiff's grade or the level of the position in FPS that he held at the time of the award. Id. Plaintiff's April 2018 application did not show that he had served at least 52 weeks at the GS-13 grade level. Id. ¶¶ 5, 7. On May 25, 2018, OPM, drawing from candidates who had applied to the April 2018 announcement, generated two lists of eligible applicants for the open position, known as “Certificates of Eligibles” (the “Certificates”). Id. ¶ 6. The Certificates were sent to FPS. See id. The Certificates contained the names of 22 individuals, including YinPing Cheng; Plaintiff was not included in the Certificates. See id. ¶¶ 7-8; ECF No. 84, Exs. D and E (Certificates of Eligibles).
Through the spring and summer of 2018, a five-member panel of employees from FPS reviewed and interviewed applicants for the Supervisory Program Manager (Mission Support) position in several regions, including Region 2. See R. 56.1 Statement ¶ 9. In May and June 2018, the panel reviewed and scored the resumes of applicants whose names appeared on the OPM-generated Certificates, and in July 2018, the panel conducted phone interviews of a select number of applicants. Id. ¶¶ 9-10. Thereafter, the panel aggregated the resume and interview scores for each applicant (in each Region) in a “scoring summary sheet,” and recommended the top candidate from each region for selection for the open position in each region. Id. ¶ 11. Cheng received the highest overall score for applicants in Region 2 (and the second highest overall score of all applicants). Id. ¶ 11. The panel's work concluded between August 3 and August 6, 2018, after it certified the accuracy of the scoring summary sheet. Id. ¶ 13.
On August 30, 2018, the April 2018 announcement was canceled “due to an inconsistency in the description of the specialized experience requirement.” Id. ¶ 14. That day, Plaintiff and all others who had applied pursuant to the April 2018 announcement were sent a notification informing them: (1) of the cancelation; (2) that no selections would be made from the canceled announcement; and (3) that the canceled announcement was replaced by a new announcement for the same position, which OPM reposted on August 30, 2018. Id. ¶¶ 14-16. The August 2018 announcement fixed the inconsistency in the description of the “specialized experience requirement,” but was otherwise substantively the same as the April 2018 announcement. Id. ¶ 14. The Time-in-Grade requirement and instructions for demonstrating satisfaction of that requirement were the same as in the April 2018 announcement. Id. The new announcement indicated that the application period would remain open from August 30, 2018, to March 1, 2019. Id. ¶¶ 14-15. But, the announcement informed applicants that a review of applications would take place “five business days after the open date of the announcement” (that is, on September 7, 2018) with any additional reviews of applications occurring only “as needed.” Id. ¶ 15.
On September 12, 2018, Plaintiff submitted an online application in response to the August 2018 announcement. Id. ¶ 17. On September 19, 2018, OPM issued three Certificates of Eligibles for the Region 2 position. Id. ¶ 18. The names on those Certificates were drawn from eligible applicants who had submitted applications by September 7. Id. The Certificates were sent to FPS. Id. Plaintiff's name was not included in those Certificates because he did not submit his application by September 7, 2018, the cut-off date for the agency's first review of applicants. Id. ¶ 19. Cheng's name was included on the Certificates issued following the August 2018 announcement. Id. ¶ 20.
Because the April 2018 and August 2018 announcements were substantively the same, and because Cheng, the highest overall scorer for applicants in Region 2 from the April 2018 announcement, was on the Certificates for the August 2018 announcement, “FPS determined that it did not need to duplicate all of the work the Panel had done in Region 2” for the April 2018 announcement. Id. ¶ 21. On September 20, 2018, Jason Martinez, the then-Acting Regional Director for Region 2, selected Cheng for the Supervisory Program Manager (Mission Support) position. Id. ¶ 22. Martinez made his decision based on the panel's prior assessment of applicants. Id. ¶¶ 12, 22.
II. Procedural Background
Plaintiff, originally proceeding pro se, filed his Complaint on September 17, 2019. See ECF No. 1. On September 23, 2019, the Honorable Valerie Caproni entered an order referring the case to Magistrate Judge Debra C. Freeman for general pretrial and dispositive motion. See ECF No. 4. On January 14, 2020, Plaintiff filed a First Amended Complaint. See ECF No. 7. Plaintiff subsequently retained counsel. See ECF No. 20. On February 3, 2021, Plaintiff filed a Second Amended Complaint,alleging claims for non-selection and hostile work environment under Title VII, as well as claims under the Federal Tort Claims Act (“FTCA”) and the New York State Human Rights Law (“NYSHRL”). See ECF No. 28.
This case was reassigned to the Honorable Lewis J. Liman on February 6, 2020.
Although the submission was titled “First Amended Complaint,” it was in fact Plaintiff's Second Amended Complaint because he filed a First Amended Complaint on January 14, 2020. See ECF No. 7.
On February 26, 2021, Defendants filed a motion to dismiss Plaintiff's Second Amended Complaint. See ECF Nos. 29-32. On April 13, 2021, Judge Freeman issued a Report and Recommendation (“R&R”), recommending that Defendants' motion be granted in its entirety, but that Plaintiff be afforded leave to replead certain claims. See ECF No. 45. As is relevant here, Judge Freeman recommended dismissal of the Title VII non-selection claims for lack of exhaustion, see Id. at 22-26, and dismissal of the hostile-work-environment claims because Plaintiff's allegations did not plead the objective severity or pervasiveness necessary to sustain such claims, and because Plaintiff had not alleged that the conduct was caused by his membership in a protected class, see id. at 15. Judge Freeman recommended that Plaintiff be given leave to replead his hostile-work-environment claim. See id. at 30.
Additionally, Judge Freeman recommended that Plaintiff's FTCA claim be dismissed for lack of subject-matter jurisdiction, see ECF No. 45 at 26-28, and that his NYSHRL claims be dismissed because they were not addressed by Plaintiff in his response to Defendants' motion to dismiss and were thus deemed abandoned, see id. 28-30.
Plaintiff filed an objection to Judge Freemans's R&R, see ECF No. 47, and on September 30, 2021, Judge Liman entered an Opinion and Order adopting Judge Freeman's R&R in part, see ECF No. 49. As is relevant here, Judge Liman agreed that Plaintiff's hostile-workenvironment claims should be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, but declined to adopt Judge Freeman's recommendation that Plaintiff's Title VII non-selection claim be dismissed for failure to timely file a complaint before the Equal Employment Opportunity Commissioner. See ECF No. 49 at 21-22. Judge Liman granted Plaintiff leave to replead the hostile-work-environment claim. Id. at 22.
Judge Liman also agreed with Judge Freeman's recommendation as to Plaintiff's FTCA and NYSHRL claims, and dismissed those claims. See ECF No. 49 at 21-22. As to the nonselection claim, Judge Liman concluded that Judge Freeman had erred in relying, at the motion to dismiss stage, on the EEOC complaint for its contents and the truth of the statements.
On November 1, 2021, Plaintiff filed his Third Amended Complaint. See ECF Nos. 54, 56. Defendants filed their answer on November 22, 2021. See ECF No. 57. On April 30, 2022, the referral for this action was reassigned to the undersigned. See April 30, 2022 Docket Entry. On September 30, 2022, the parties completed fact discovery. See ECF Nos. 60 (scheduling order), 70 (joint letter representing that discovery had been completed). On January 13, 2023, Defendant submitted its Motion for Summary Judgment and supporting papers, including a Rule 56.1 Statement. See ECF Nos. 76-78. Plaintiff filed his opposition on April 24, 2023, but did not submit a response to Defendant's Rule 56.1 Statement. See ECF Nos. 88-89. The motion was fully briefed on May 26, 2023. See Def.'s Reply Br., ECF No. 90.
Although the submission is titled “Second Amended Complaint,” it is in fact Plaintiff's Third Amended Complaint, because the Second Amended Complaint was filed on February 3, 2021. See ECF No. 28. In his Third Amended Complaint, Plaintiff alleges that, on March 5, 2018, he “timely filed a charge of discrimination, hostile work environment, and harassment with the [EEOC],” and that on February 10, 2019, he “timely filed a second charge of discrimination with the EEOC. See ECF No. 56, ¶¶ 6-7. Plaintiff further states that on June 19, 2019 (prior to the commencement of this suit), “the EEOC issued [him] a Notice of Right to Sue” letter for his “second charge of discrimination.” See id. ¶¶ 8-9.
LEGAL STANDARDS
I. Summary Judgment
Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). The trial court's task “is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them.” Gallo 22 F.3d at 1224. The moving party bears the initial burden of “informing the contained therein, see ECF No. 49 at 7-13, and also relied on the wrong standard for determining whether the request for an EEOC counselor was timely initiated, see id. at 14-21. district court of the basis for its motion” and identifying the matter or matters that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323.
A fact is material when it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is genuine if “the evidence is such that a jury could return a verdict for the nonmoving party.” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson, 477 U.S. at 248.). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)) (internal quotation marks omitted); Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008) (noting that the Court must view all facts “in the light most favorable” to the non-moving party). However, a court is not required to draw any inference that is “blatantly contradicted by the record, so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007).
If the movant meets its burden, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex, 477 U.S. at 322-23). “A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation, alteration, and internal quotation marks omitted). Rather, to survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A); see Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). For a genuine dispute regarding a material fact to warrant a jury trial, there must be sufficient evidence supporting the claimed factual dispute “to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249 (citation and internal quotation marks omitted). “When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo, 22 F.3d at 1224; see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“[S]ummary judgment may be appropriate even in the fact-intensive context of discrimination cases.”).
II. Discrimination Claims Under Title VII
Title VII renders it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Claims under Title VII are analyzed under the three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Walsh v. New York City Hous. Auth., 828 F.3d 70, 74-75 (2d Cir. 2016). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. at 75.
To establish a prima facie claim of discrimination under Title VII, the plaintiff “must show: (1) he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (quoting Holcomb, 521 F.3d at 138). The burden of making this showing is de minimis. See Dais v. Lane Bryant, Inc., 168 F.Supp.2d 62, 71 (S.D.N.Y. 2001) (citing Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994)); see also Abdu-Brisson, 239 F.3d at 467 (explaining that the requirement of establishing a prima face case is “neither onerous nor intended to be rigid, mechanized or ritualistic”) (internal citations and quotation marks omitted); Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006) (noting the “minimal” burden at the prima facie stage) (citation omitted).
“In determining whether the plaintiff has met the de minimis initial burden of showing circumstances giving rise to an inference of discrimination”-the fourth prong of the prima facie case-a court considers whether the “proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995) (citation and internal quotation marks omitted). A plaintiff may establish an inference of discriminatory intent by showing that he was treated differently than others similarly situated. See Abdu-Brisson, 239 F.3d at 467-68. Apart from a showing of disparate treatment, an inference of discriminatory intent may also be drawn from other circumstances, such as “invidious comments about others in the employee's protected group,” “more favorable treatment of employees not in the protected group,” “the sequence of events leading to the plaintiff's discharge,” or the “employer's continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff's qualifications to fill that position.” Id. at 468 (quoting Chambers, 43 F.3d at 37).
If a plaintiff establishes a prima facie case, a presumption of discrimination is created and “the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action or termination.” Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001); McDonnell Douglas Corp., 411 U.S. at 802. However, the defendant “need not persuade the court that it was actually motivated by the proffered reason.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir. 2014) (citation and internal quotation marks omitted). Instead, “[i]t is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Id. If the defendant succeeds at step two of the McDonnell Douglas framework by articulating a legitimate, nondiscriminatory reason for the plaintiff's termination, the presumption of discrimination is rebutted. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 509-11 (1993).
At this point, the burden “shifts back to the plaintiff to provide admissible evidence showing that the defendant's proffered reason was a pretext for discrimination.” Grant v. Cont'l Cas. Co., No. 13-CV-5675 (AT), 2015 WL 1499724, at *6 (S.D.N.Y. Mar. 30, 2015) (citation omitted); see also Holcomb, 521 F.3d at 138,142 (explaining that even if prima facie case is rebutted, plaintiff “may still prevail by showing . . . that the employer's determination was in fact the result” of discrimination). Otherwise stated, to withstand summary judgment, “the plaintiff must produce . . . sufficient evidence to support a rational finding that the legitimate nondiscriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action.” Grant, 2015 WL 1499724, at *6 (S.D.N.Y. Mar. 30, 2015) (citation and internal quotation marks omitted); see also Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996). In some cases, assessment of a plaintiff's prima facie case and his evidence of pretext “tend to collapse as a practical matter under the McDonnell Douglas framework.” See Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 118 n.1 (2d Cir. 2002).
III. Hostile-Work-Environment Claims Under Title VII
“Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). To establish the existence of a hostile work environment under Title VII, a plaintiff must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Littlejohn v. City of New York, 795 F.3d 297, 320-21 (2d Cir. 2015) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted)). “This standard has both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.” Id. (citations omitted). To be pervasive, the “incidents complained of must be more than episodic; they must be sufficiently continuous and concerted.” Id. (citation and internal quotation marks omitted).
In determining whether a plaintiff suffered a hostile work environment, courts in this Circuit consider the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. (quoting Harris, 510 U.S. at 23). A plaintiff “must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of [plaintiff's] working environment.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)); see Sattar v. Johnson, 129 F.Supp.3d 123, 141-42 (S.D.N.Y. 2015).
A hostile-work-environment claim also requires a plaintiff to show “that a specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (internal quotation marks omitted) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)); accord Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015). “When harassment is perpetrated by the plaintiff's coworkers, an employer will be liable if the plaintiff demonstrates that ‘the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.'” Perry, 115 F.3d at 149 (2d Cir. 1997) (citation omitted). Finally, the plaintiff must produce evidence that the misconduct occurs because of his protected characteristic, such as his race. See Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014). This can be done through either “direct evidence of explicit racial harassment,” see id., 743 F.3d at 23, or “circumstantial proof' that the adverse treatment, although “not explicitly [race]-based was, nevertheless, suffered on account of [race],” Raniola v. Bratton, 243 F.3d 610, 621-22 (2d Cir. 2001).
DISCUSSION
Plaintiff avers that he was not selected for promotion because of his race and gender, and was subjected to a hostile work environment because he is Black, in violation of Title VII. Although Plaintiff has established a prima facie case for discrimination as to his non-selection claim, he has failed to raise a genuine issue of fact regarding Defendant's non-discriminatory reasons for selecting Cheng for the open position. Simply put, Plaintiff has failed to show that Defendant's proffered reasons for not selecting Plaintiff were false. And as to Plaintiff's hostile-work-environment claim, Plaintiff has not shown that the alleged misconduct by Ward was motivated by Ward's animus towards Blacks. Accordingly, I recommend that Defendant's motion for summary judgment be granted as to both claims.
I. Plaintiff's Non-Selection Claim Under Title VII.
a. Plaintiff has established a prima facie case.
To establish a prima facie case of discrimination under Title VII, a plaintiff must show that (1) he is in a protected class; (2) he was qualified for the position; (3) he experienced an adverse employment action; and (4) such action occurred under circumstances giving rise to an inference of discrimination. See Brown, 673 F.3d at 150 (citation omitted). Plaintiff has established a prima facie case here.
The first three requirements of a prima facie case are not in dispute. See Def's Br. at 1012; Pl.'s Br. at 10-11. First, Plaintiff, who is a black man, is within a protected class. See 42 U.S.C. § 2000e-2(a)(1); see also Defs.' Br. at 1; Pl.'s Br. at 4. Second, Plaintiff's non-selection for the position of Supervisory Program Manager (Mission Support) is an adverse employment action. See Phillips v. Chertoff, No. 03-CV-4266 (GEL), 2005 WL 3466033, at *4 (S.D.N.Y. Dec. 16, 2005) (in analyzing non-selection claim, finding that where plaintiff “was not given an offer in response to any of her applications,” each instance of non-selection was “an adverse employment action”); see also Buon v. Spindler, 65 F.4th 64, 80-82 (2d Cir. 2023) (“It is well settled that ‘failing to promote' an employee . . . qualifies as an adverse employment action under Title VII.”) (citation omitted); Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (recognizing that a discriminatory failure to promote is “within the core activities encompassed by the term ‘adverse actions'”).
Third, Plaintiff was qualified for the “GS-14” level position. To establish that he was qualified for the position, Plaintiff need only show that he “possesse[d] the basic skills necessary for the performance of the job.” Thelwell v. City of New York, No. 13-CV-1260 (JGK), 2015 WL 4545881, at *13-14 (S.D.N.Y. July 28, 2015) (quoting De la Cruz v. New York City Hum. Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d. Cir. 1996) (alteration omitted)). At the time he applied for the open position, Plaintiff had been working at a GS-13 level position for over 10 years. See R. 56.1 Statement ¶ 1; Declaration of Alyssa B. O'Gallagher (“O'Gallagher Decl.”), Ex. C (April 2018 Application) at 10 (Bamba Resume), ECF No. 84. And Defendant does not dispute that Plaintiff possessed the basic skills necessary for the position. See Def.'s Br. at 10-12; Def.'s Reply Br. at 3.
The only element of the prima facie case disputed by Defendant is the fourth element- whether Plaintiff has established that his non-selection occurred under circumstances giving rise to an inference of discrimination. Plaintiff has shown just enough to establish that his nonselection occurred under such circumstances. “Plaintiff's burden of proof at the prima facie stage is de minimus,” and may be established simply by showing more favorable treatment of “similarly situated” employees outside of the protected class. See Abdu-Brisson, 239 F.3d at 468; Dais, 168 F.Supp.2d at 71; Leibowitz v. Cornell University, 584 F.3d 487, 502 (2d. Cir. 2009). Indeed, an inference of discrimination may be established where an employer “fills [a] position with a person outside the protected class who was similarly or less qualified than the plaintiff.” Szewczyk v. City of New York, No. 15-CV-918 (MKB), 2021 WL 2010504, at *6 (E.D.N.Y. Feb. 23, 2021), affd, No. 21-CV-672, 2022 WL 2037196 (2d Cir. June 7, 2022) (citation and internal quotation marks omitted); see also, e.g., Rosso v. PI Mgmt. Assocs., L.L.C., No. 02-CV-1702 (KNF), 2005 WL 3535060, at *17 (S.D.N.Y. Dec. 23, 2005) (concluding that plaintiff “made the minimal showing required to establish a prima facie case of discrimination based on race” where plaintiff's “successor” was “an Asian man and, hence, an individual outside the plaintiff's protected class”).At the time they applied for the same open position, Cheng and Plaintiff were both GS-13 level employees. Cheng, an Asian woman, is outside of Plaintiff's protected class because Plaintiff is a Black man. And, Plaintiff had eight more years of experience at the GS-13 level than Cheng. See O'Gallagher Decl., Ex. C at 10 (Bamba Resume); ECF No. 89, Ex. G (Cheng Resume). Given the de minimus burden faced by a plaintiff at the prima facie stage, see Abdu-Brisson, 239 F.3d at 467-68, the circumstances relied on by Plaintiff are sufficient to establish the fourth and final element of a prima facie case.
See also Finney v. Planned Parenthood of New York City, Inc., No. 02-CV-7942 (CBM), 2003 WL 22928730, at *5 (S.D.N.Y. Dec. 10, 2003) (finding that plaintiff, an African-American woman, established a prima facie case of race discrimination by showing that she was replaced by a Latina woman), affd, 110 Fed.Appx. 194 (2d Cir. 2004); De La Cruz, 82 F.3d at 20 (finding that, where plaintiff, who was Puerto Rican, was replaced by a Black female, he satisfied the fourth prong of his prima facie case of national origin discrimination); Clarke v. 1 Emerson Drive N. Operations, LLC, No. 13-CV-690 (JCH), 2015 WL 3453388, at *3 (D. Conn. May 28, 2015) (“This evidence-that Clarke, a black woman, was replaced by a woman who is [of Philippine and Asian descent]-is sufficient to meet Clarke's ‘minimal' burden at the.
b. Plaintiff has failed to raise a genuine issue of fact as to Defendant's legitimate, non-discriminatory reasons for his non-selection.
Shifting to stage two of the McDonnell Douglas framework, Defendant has undoubtedly satisfied his burden of proffering a legitimate, non-discriminatory explanation for Plaintiffs termination. Courts have found that deficiencies in a candidate's application or qualifications, which result in the candidate's exclusion from eligibility for a position, are legitimate, non-discriminatory reasons for non-selection. See, e.g., Angioletti v. Chao, 720 Fed.Appx. 41, 43-44 (2d Cir. 2017) (affirming district court's finding that Plaintiff's absence from the “certificate of eligibles” for an administrative-assistant position, due to the fact that she was not a veteran, constituted a legitimate, nondiscriminatory reason for her non-selection).Moreover, “[t]he summary judgment phase with respect to her prima facie case of race discrimination.”) (citing Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001)). application of neutral company policies is ‘by definition' a legitimate, nondiscriminatory reason for a particular action.” See Rotondo v. Best Buy Stores LLC, No. 17-CV-522, 2019 WL 4805374, at *13 (N.D.N.Y. Oct. 1, 2019) (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 51 (2003) and Russell v. Aid to Developmentally Disabled, Inc., 753 Fed.Appx. 9, 14 (2d Cir. 2018) (summary order)); Marinacci v. U.S. Postal Serv., 403 F.Supp.3d 116, 127 (E.D.N.Y. 2017).
See also Venable v. Pritzker, No. 13-CV-1667 (GLR), 2014 WL 2452705, at *3, 15 (D. Md. May 30, 2014), affd, 610 Fed.Appx. 341 (4th Cir. 2015) (finding that plaintiff's absence from the Certificate of Eligibles, due to the operation of a veterans' preference, evinced “no subjective evaluation of [plaintiff's] application or prior performance that could reflect discriminatory . . . bias,” and noting that it is “difficult to see how such a neutral initial evaluation method . . . could be discriminatory”); McKitt v. Alabama Alcoholic Beverage Control Bd., No. 12-CV-673 (WHA), 2013 WL 5406804, at *24 (M.D. Ala. Sept. 25, 2013), affd, 571 Fed.Appx. 867 (11th Cir. 2014) (finding that that plaintiff's exclusion from the Certificate of Eligibles for the position was a legitimate, nondiscriminatory reason for plaintiff's non-selection); Archibong v. Kappos, No. 12-CV-746, 2013 WL 204785, at *3 (E.D. Va. Jan. 15, 2013) (finding that plaintiff's absence from the Certificate of Eligibles constituted a legitimate, nondiscriminatory reason for his non-selection where Plaintiff's application materials did not qualify him for the position).
It is undisputed that the April 2018 announcement indicated that applicants for the position had to satisfy a Time-in-Grade requirement, demonstrating that they had served 52 weeks at the GS-13 level, the grade level immediately preceding the GS-14 level of the open position. See R. 56.1 Statement ¶¶ 2-3; O'Gallagher Decl., Ex. B (April 2018 Announcement) at 2-3. The April 2018 announcement instructed applicants to submit an SF-50 that showed proof of their Time in Grade, and warned applicants that an “Award SF-50” typically did not show proof of Time in Grade. See R. 56.1 Statement ¶ 4; O'Gallagher Decl., Ex. B at 2-3.
Plaintiff's application did not demonstrate that he satisfied the Time-in-Grade requirement. With his application, Plaintiff included only an “Award SF-50” and it did not indicate the grade level of the position he held at the time the Award SF-50 was issued. The Award SF-50 thus did not show that Plaintiff had served at least 52 weeks in a GS-13 level position. See R. 56.1 Statement ¶ 5; O'Gallagher Decl., Ex. C (April 2018 Application) at 17 (Plaintiff's SF-50, which indicated that he started at his position in 2008, but left blank the box indicating his current GS level). Because Plaintiff's application did not satisfy all of the requirements outlined in the April 2018 announcement, Plaintiff was not included in the Certificates of Eligibles generated by OPM for the position. See R. 56.1 Statement ¶ 6. By contrast, YinPing Cheng, who was ultimately selected for the position, satisfied the requirements and was included in the list of candidates on the Certificates. Id. ¶ 8.
The requirement that an applicant have spent at least 52 weeks at the grade level preceding the grade level of the open position is a neutral policy. Plaintiff did not provide the necessary documentation in his April 2018 application to demonstrate that he satisfied that requirement. Plaintiff thus did not establish his eligibility for the open position in April 2018.
In response to the August 2018 announcement, Plaintiff submitted a second application. It is undisputed that the August announcement informed potential applicants that the first review of applications would occur five business days after August 30, 2018. See R. 56.1 Statement ¶¶ 14-16; O'Gallagher Decl., Ex. H at 2. In other words, applications submitted by September 7, 2018, would be reviewed first, with an additional review taking place only as needed. It is also undisputed that Plaintiff submitted his application on September 12, 2018, five days after the cutoff date of September 7. See R. 56.1 Statement ¶ 17. As a result, Plaintiff was not included on the Certificates generated for the August 2018 announcement. See R. 56.1 Statement ¶¶ 17-19; O'Gallagher Decl., Ex. I at 20. Cheng, on the other hand, was included in the Certificates for the August 2018 announcement. See O'Gallagher Decl., Ex. K (September 2018 Certificate) at 1.
The agency's decision to conduct an initial review by a date certain and Plaintiff's failure to submit his application by that date, was a legitimate non-discriminatory reason for Plaintiff's lack of inclusion on the Certificates for the August 2018 announcement. See, e.g., Singh v. RXR 620 Master Lease, LLC, No. 21-1092-CV, 2022 WL 2187206, at *2 (2d Cir. June 17, 2022) (finding defendant “proffered a legitimate, non-discriminatory reason for not hiring [plaintiff],” as “he failed to timely apply for the job”). Defendant has thus articulated a legitimate, non-discriminatory reason for selecting Cheng over Plaintiff for the open position.
Having establish a legitimate business reason for Plaintiff's non-selection, the burden shifts to Plaintiff to show that Defendant's proffered reasons are a pretext for discrimination and that Defendant's actual motivations were, more likely than not, discriminatory. See Wolf v. Time Warner, Inc., 548 Fed.Appx. 693, 694 (2d. Cir. 2013); Leibowitz, 584 F.3d at 499. Plaintiff attempts to establish pretext by arguing that Defendant deviated from the agency's standard selection procedure. See Pl.'s Br. at 11-14. More specifically, Plaintiff disputes that his application was first reviewed for eligibility by OPM and he disputes that OPM issued the Certificates. According to Plaintiff, his application went directly to DHS-FPS, and DHS-FPS generated the Certificates, all the while aware that Plaintiff was qualified for the GS-14 level position. Id. at 11. As explained below, Plaintiff has failed to raise a genuine dispute of fact as to whether Defendant's legitimate business reasons were pretextual.
To support his claim that the agency followed its standard selection procedures in filling the open position, Defendant has pointed to admissible evidence in the form of sworn declarations, from individuals with knowledge of the hiring process followed by OPM and FPS. See ECF Nos. 80-81. Melanie Soto, a Human Resources Specialist for OPM, submitted a sworn declaration stating that, through her review of agency records and performance of her duties, she is aware that “FPS entered into an agreement with OPM to provide human resources support for its hiring efforts to fill” the at-issue position, including “posting job announcements on USAJOBS, the federal government's official employment cite, accepting applications, reviewing applicants for eligibility, and issuing lists of eligible certificates, called certificates of eligible[s], to the agency for its review.” See Declaration of Melanie Soto (“Soto Decl.”) ¶¶ 1-3, 5, ECF No. 81. Soto further stated that on May 25, 2018, OPM issued the Certificates of Eligibles for the at-issue position and sent them to FPS. Id. ¶ 11. Soto attests that Plaintiff was not included on those Certificates “because he had not demonstrated eligibility.” Id. ¶¶ 11-12. Further, Lateca Roman, a Deputy Director in the Human Capital Operations Division of FPS, submitted a sworn declaration stating, based on her personal knowledge, that “FPS played no role in determining whose names appeared on the Certificates of Eligibles issued by OPM for any FPS position.” See Declaration of Lateca Roman (“Roman Decl.”) ¶¶ 1, 7, ECF No. 80. Roman also explained that FPS could not “consider for any FPS positions individuals whose names did not appear on the Certificates of Eligibles issued by OPM for the position.” See id. ¶ 7.
Defendant also proffers admissible evidence indicating that when the application process reopened in August 2018, Plaintiff did not submit his application before the cut-off date for the agency's initial review. Specifically, Soto attests that, on September 19, 2018, OPM issued Certificates for the position, and Plaintiff was not included on the Certificates because he did not submit his application by the initial review cut-off date. See Soto Decl. ¶¶ 17-19.
Conversely, Plaintiff points to no admissible evidence to support his argument that the agency's standard application process was not followed, and that the Certificates were created by the agency and not OPM. Although Plaintiff claims that the hiring process here did not involve OPM and instead occurred within FPS, Plaintiff points to no evidence in the record to support his argument that OPM did not generate the Certificates of Eligibles. See Rozenfeld v. Department of Design & Constr. of City of New York, 875 F.Supp.2d 189, 210 (E.D.N.Y. 2012) (“[Unsupported allegations do not create a material issue of fact.”) (citing Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000)). Instead, Plaintiff asserts, without support, that the Certificates contained “no indicia” that they were generated by OPM. See Pl.'s Br. at 11 (citing Ex. I). To the extent Plaintiff is claiming that the Certificates needed to have an OPM “logo” or “stamp,” Plaintiff points to no evidence in the record indicating that the Certificates here differed in any material way from Certificates typically generated by OPM for other positions at FPS. Nor does Plaintiff have any admissible evidence to counter Soto's and Roman's sworn declarations explaining that the Certificates were issued by OPM.
Plaintiff also points to the “help center” section of the usajobs.gov website, which Plaintiff argues indicated that applications would be sent to “the hiring agency” (in this case, DHS-FPS) for initial review. See Pl.'s Br. at 7, 11 (citing Exs. E & H). From this, Plaintiff extrapolates that OPM must not have been involved in the hiring process. This assertion, however, amounts to nothing more than “unsubstantiated speculation” and cannot suffice to create a genuine dispute of material fact. See F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (citation omitted); see also Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (noting a plaintiff “must do more than simply show that there is some metaphysical doubt as to the material facts”) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Plaintiff's reliance on a “summary” of the application process contained in a printout from the “help center” of the USA Jobs website is unaccompanied by any sworn testimony from a person with personal knowledge of how the applications for the open position here were handled by OPM and FPS. And as already discussed, Plaintiff points to no admissible evidence that contradicts Soto and Roman's sworn declarations stating that OPM generated the Certificates of Eligibles for the at-issue position, and that FPS played no role in determining whose names appeared on those Certificates. See Arnow v. Aeroflot Russian Airlines, 980 F.Supp.2d 477, 482 (S.D.N.Y. 2013) (“A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment,” as “conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist.”) (quoting Hicks, 593 F.3d at 166). Finally, it is undisputed that the second-level “review” (i.e., the review of eligible applicants) was conducted by a Panel composed of FPS employees, which, in any case, is consistent with the representation on the USA Jobs website that the applications would be sent to the hiring agency. See Roman Decl. ¶¶ 4, 6, 8-12; R. 56.1 Statement ¶¶ 9-13.
Additionally, Plaintiff suggests that there was something nefarious behind FPS's cancellation and subsequent reannouncement of the open position. See Pl.'s Br. at 12-13. But here, too, Plaintiff has failed to point to any admissible evidence to support his argument that the process deviated from the agency's standard procedures. See Weinstock, 224 F.3d at 45 (2d Cir. 2000) (affirming summary judgment on Title VII claim when alleged procedural irregularities were unrelated to sex, did not affect final employment decision, and revealed “no evidence of pretext”); Bickerstaff v. Vassar Coll., 196 F.3d 435, 453-54 (2d Cir. 1999) (noting that although departures from procedures “can raise a question as to the good faith of the process,” the plaintiff had not shown that departure in that case was “a procedural irregularity” or one that was “racerelated”).
Plaintiff also disputes that he was not selected, following his April 2018 application, because he did not submit a proper SF-50, claiming instead that he did submit a proper SF-50 demonstrating his Time-in-Grade. See Pl.'s Br. at 7; see also Bamba Dep. Tr. at 33-43. In support of this contention, Plaintiff appends to his opposition brief a standalone SF-50 from December 2016, which demonstrates that he spent at least 52 weeks at the GS-13 level. See ECF No. 89, Ex. D. There is no indication in the record, however, that the SF-50 appended to Plaintiff's brief was submitted by Plaintiff with his application in April 2018. Moreover, Defendants submitted Plaintiff's complete April 2018 Application as an addendum to the sworn declaration of Alyssa B. O'Gallagher. That application contains a different SF-50 than the one appended to Plaintiff's brief, and the SF-50 in Plaintiff's application did not indicate the length of time Plaintiff had served at the GS-13 level. See O'Gallagher Decl., Ex. C at 17 (SF-50 contained in April 2018 Application); see also Soto Decl. ¶¶ 10-12.
At his deposition, Plaintiff testified that the copy of the April 2018 Application presented to him “seem[ed] like” the one he submitted, see Bamba Dep. Tr. at 35-36, and acknowledged that “[t]here was only one SF-50” included in that application, id. at 37. Plaintiff further testified that his April 2018 application included “an SF-50 plus an award [SF-50],” and asserted that one must have been “removed.” See id. at 39. Plaintiff conceded that the SF-50 contained in the April 2018 Application presented to him does not contain his GS-level, but nonetheless states the SF-50 he submitted “did say [his] grade on it.” See id. at 42-43. As discussed, Plaintiff offers no admissible evidence to support this assertion.
Finally, Plaintiff asserts that Cheng was far less qualified for the position because she had served at the GS-13 level for two years and has a Bachelor's degree, as compared to Plaintiff's 10 years of experience at the GS-13 level and Master's degree. See Pl.'s Br. at 6, 10, 13; see also ECF No. 89, Ex. G at 6-12 (Cheng Resume). Plaintiff's argument, however, is misplaced; Plaintiff's qualifications were not even considered by the Panel reviewing applicants for the open position because his name did not appear on the Certificates. In any case, for a discrepancy in qualifications to serve as a basis to defeat a motion for summary judgment, a plaintiff must show “that he was objectively so much better qualified than the person promoted over him that the employer's justification for the decision must be pretextual.” Sattar, 129 F.Supp.3d at 139 (quoting Witkowich v. Gonzales, 541 F.Supp.2d 572, 582 (S.D.N.Y. 2008)). Cheng had two years at the GS-13 level and thus easily satisfied the Time-in-Grade requirement for the open position, which only mandated one year of experience at the GS-13 level. Further, Cheng received the second highest score of the 64 individuals (across all regions) who submitted applications for the April 2018 announcement, and the highest score of the 22 individuals who submitted applications for the Region 2 position. See R. 56.1 Statement ¶¶ 8-13, 18-22; Roman Decl., ¶ 11; Def's Br. at 14 n.2; O'Gallagher Decl., Ex. F (scoring summary sheet). Given Cheng's performance during the interview process, it cannot be said that “no reasonable person, in the exercise of impartial judgment, could have chosen” Cheng over Plaintiff for the open position. Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001); see also Punter v. City of New York, No. 03-CV-3523, 2005 WL 2095733, at *4 (E.D.N.Y. Aug. 30, 2005).
At bottom, Plaintiff has offered no evidence tending to show that Defendant's selection process in any way considered his race or gender. See, e.g., Barnes v. CCH Corp. Sys., No. 01-CV-2575 (AKH), 2004 WL 1516791, at *6 (S.D.N.Y. Jul. 7, 2004) (granting summary judgment where plaintiff “offer[ed] no evidence showing that” defendants' alleged discriminatory conduct “had any nexus with [plaintiff's] race, gender, or disease status”). The selection process was objective and race-neutral on its face, and Plaintiff has offered no evidence from which a reasonable factfinder could conclude that FPS deviated from that process here. Consequently, Plaintiff has failed to show that the real reason for his non-selection was animus towards him because he is a Black man.
In short, the evidence offered by Plaintiff is insufficient to support a finding that Defendant's “proffered reason[s] [were] pretext for discrimination.” Grant, 2015 WL 1499724, at *6 (citing Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004)). Instead, the undisputed evidence shows that Plaintiff was not selected for the position because his initial application did not demonstrate he was qualified and his second application was submitted after the cut-off date for a review of applicants. Plaintiff has thus failed to carry his “ultimate burden” and establish a Title VII claim of discrimination. See Cilento v. Chertoff, No. 05-CV-6243 (CLB) (GAY), 2006 WL 2270900, at *7 (S.D.N.Y. Aug. 4, 2006). Considering all of the evidence in the record and granting Plaintiff all inferences to which he is entitled, I recommend finding that Defendant's motion be granted as to this claim because Plaintiff has failed to raise a genuine issue of fact as to whether his non-selection was due to his race or gender.
II. Plaintiff's Hostile-Work-Environment Claim under Title VII.
To establish a hostile-work-environment claim under Title VII, a plaintiff must show both that the conduct complained of was severe or pervasive enough that a reasonable person would find it hostile or abusive, and that he subjectively perceived the work environment to be abusive. Littlejohn, 795 F.3d at 320-21. In addition, a plaintiff must show not only “that a specific basis exists for imputing the objectionable conduct to the employer,” Alfano, 294 F.3d at 373 (citation and internal quotation marks omitted), but also that the misconduct occurred because of his protected characteristic. Rivera, 743 F.3d at 20. The merits of a hostile-workenvironment claim are either assessed cumulatively, if the plaintiff has set forth “a series of incidents [that] were sufficiently continuous and concerted to have altered the conditions of [his] working environment,” or on the basis of an “extraordinarily severe” single event. Whidbee, 223 F.3d at 69 (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)) (internal quotation marks omitted in original). “Determining whether workplace harassment was severe or pervasive enough to be actionable depends on the totality of the circumstances.” Cruz, 202 F.3d at 570. Factors considered include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the employee's work performance.” Harris, 510 U.S. at 23.
Plaintiff bases his hostile-work-environment claim on the conduct of Ward and in particular: (1) the March 5, 2018 assault by Ward; (2) an e-mail thread between Ward and Plaintiff from 2016; and (3) Ward's history of bullying and assaulting other minority employees (including other Black employees). See Pl.'s Br. at 5-8. Defendants do not address whether the conduct complained of by Plaintiff is sufficiently severe or pervasive to constitute a hostile work environment, and instead argue that there is no evidence to support a finding that any misconduct by Ward occurred because of Plaintiff's race. See Defs.' Br. at 14-16; Defs.' Reply Br. at 9-10. To support that argument, Defendants point to Plaintiff's deposition testimony that Ward “never made any offensive statement to him about his skin color or race.” See Defs.' Br. at 7, 15; see also Bamba Dep. Tr. at 64-65, 99-100. Plaintiff acknowledged in his deposition that Ward did not make any racially derogatory statements. See Bamba Dep. Tr. at 100:2-3 (Plaintiff testifying that Ward never made any comments about Plaintiff's race “in person,” only that Ward's “behavior talked by itself'). In any case, as explained below, the frequency and severity of the conduct by Ward that Plaintiff relies on falls far short of establishing the existence of a hostile work environment.
First, as to the incident between Plaintiff and Ward on March 5, 2018, I accept the facts in the light most favorable to Plaintiff and assume that the incident occurred as Plaintiff recounts in his brief. See Pl.'s Br. at 5. Viewed in the light most favorable to Plaintiff, Ward clutched his firearm while in the holster, pushed Plaintiff into his chair, spun him around, grabbed the phone out of his hand, screamed at him, and prevented Plaintiff from calling 911. See Pl.'s Br. at 5.
The single, isolated incident on March 5th did not involve severe physical abuse, nor did it involve sexual abuse. Courts “rarely find limited incidents of physical violence without a sexual element to establish a hostile working environment.” La Pena v. Metro Life Ins. Co., No. 12-CV-0766 (ADS), 2013 WL 11326538, at *18 (E.D.N.Y. Jan. 11, 2013) (citation omitted). “If a single non-sexual incident can ever suffice to support a hostile work environment claim, the incident must be extremely severe.” Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998)). In other words, the incident must “constitute an ‘intolerable alteration' of the plaintiff's working conditions,” so as to “substantially interfere with or impair his ability to do his job.” Mathirampuzha v. Potter, 548 F.3d 70, 79 (2d Cir. 2008) (citations omitted). Here, even assuming the incident occurred as Plaintiff described it, there is no indication that Ward hit Plaintiff or caused him any physical injuries. Cf, La Pena, 2013 WL 11326538, at *18 (finding that a single incident in which defendant acted in a threatening manner, hit Plaintiff in the back, pushed him into a desk, and told him to leave his job was not sufficiently severe or pervasive), Mathirampuzha, 548 F,3d at 73, 79 (single incident where defendant “grabbed the plaintiff's arm, punched him in the shoulder and the chest, spit in his face, and poked him in the eye” was insufficient to maintain a hostile-work-environment claim, where there was “no evidence that the assault brought lasting harm to the plaintiff's ability to do his job”); Ricks v, Conde Nast Publications, Inc,, 92 F, Supp, 2d 338, 348-49 (S.D.N.Y, 2000) (holding that an allegation that a defendant hit the plaintiff on the shoulder and pushed her out of her office was insufficiently severe to establish a hostile-work-environment claim); O'Neal v, State Univ, of New York, No, 01-CV-7802, 2006 WL 3246935, at *7 (E.D.N.Y. Nov, 8, 2006) (concluding that an alleged struggle between an employee and her employer “over the door handle that resulted in the door striking [plaintiff's] knee” was not severe enough to support to a hostile work environment), Nor is there any evidence in the record to support a finding that the March 5 incident substantially interfered with or impaired Plaintiff's ability to perform his job, Consequently, the March 5th incident, standing alone, was not sufficiently severe so as to establish the existence of an objectively hostile or abusive work environment, Plaintiff also relies on a single e-mail thread from October 2016, between himself and Ward, to argue that “Ward consistently disrespected him by sending him inappropriate emails and engaging in hostile harassing behaviors,” See Pl.'s Br, at 5; see also id, Ex, A, On October 26, 2016, Plaintiff e-mailed Ward and others requesting an update to a spreadsheet concerning Region 2 “[o]ccupied space.” See id., Ex. A at 6. Ward replied to Plaintiffs e-mail and stated that the requested update was “not a [Risk Management Branch] function.” Id. After an e-mail from another employee indicating that the employee would provide Plaintiff with “the latest list of FPS occupied space,” Plaintiff stated, “I was about to send to James Ward the FPS Policy's and Role of Risk Management for Building Specifics and Countermeasures. Apparently [he is] new.” Id. at 4-5. Plaintiff added that he “wish[ed] to make the record[] straight with [Ward] in the near[] future.” Id. at 4. In response, Ward told Plaintiff that he wanted “to be very clear” with Plaintiff because this was not the “first time [Plaintiff] ha[d] demonstrated complete disrespect for [Ward] and [his] position within this agency and this Region.” Id. at 3. Ward then directed Plaintiff to make “any communication” in the future “with anyone in the Risk Management Branch of this Region” through Plaintiff's “supervisor.” Id. In the final e-mail in the chain, Plaintiff replied to Ward and stated that he had “records” of all their communications, where Ward had denigrated Plaintiff's “activities” and his “roles.” Id. at 2. Plaintiff further stated that Ward's “harassments and threats” would not stop him performing his “duties.” Id.
As an initial matter, there is no explicit reference by Ward (or anyone else) to Plaintiff's race in the e-mail thread. Nor is there any indication from the broader context of the discussion that any explicit or implicit disparagement or insult was directed at Plaintiff on account of his race. Indeed, a review of the entire e-mail discussion reveals no harassment, ridicule, or insult by Ward (or anyone else in the chain) towards Plaintiff. Instead, the e-mail exchange reveals that Plaintiff was mocking Ward, suggesting that he was “new” in the office and thus did not understand the proper role of Risk Management. The e-mail communication is therefore also insufficient to establish a hostile work environment. Cf. Fleming v. MaxMara USA, Inc., 371 F. App'x. 115, 119 (2d Cir. 2010) (concluding that no hostile work environment existed even though defendants “excluded [plaintiff] from meetings, excessively criticized her work, refused to answer work-related questions, arbitrarily imposed duties outside of her responsibilities, threw books, and sent rude emails to her”); Davis-Molinia v. Port Auth. of N.Y. & N.J., No. 08-CV-7586 (GBD), 2011 WL 4000997, at *11 (S.D.N.Y. Aug. 19, 2011) (finding that “yell[ing] and talk[ing] down to,” among other thing, was not enough to show that defendants' conduct was sufficiently severe or pervasive), aff'd, 488 F. App'x. 530 (2d Cir. 2012).
Finally, Plaintiff points to a “history” of Ward's aggressive behavior and assault of other Black employees, as evidence of a hostile work environment. Of course, evidence of racially motivated conduct by Ward against others may be probative of Plaintiff's hostile-workenvironment claim. See Whidbee, 223 F.3d at 69 (“Because the crucial inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim.”); see also Schwapp, 118 F.3d at 111 (finding that court erred in failing to consider additional instances that did not occur in plaintiff's presence and holding that “[t]he mere fact that [the plaintiff] was not present when a racially derogatory comment was made will not render that comment irrelevant to his hostile work environment claim”). But the evidence Plaintiff relies on here, of other sporadic incidents by Ward against others, does little to establish the existence of a hostile work environment.
As evidence of Ward's conduct towards others, Plaintiff relies on his deposition testimony, where he testified that Ward “crippled” Jean Nsima, a Black man, who is now “on permanent disability.” See Pl.'s Br. at 14; see also id., Ex. K (Bamba Dep. Tr. at 96-97). But apart from his deposition testimony, Plaintiff points to no other evidence that this incident between Ward and Nsima occurred. And even assuming that it did occur, there is no evidence in the record describing what happened during the incident. It is thus impossible to conclude that Ward was acting out of animus towards Blacks based solely on the evidence in the record.
Plaintiff also relies on the testimony of his supervisor, Jason Martinez, as further evidence of Ward's conduct towards others. See Pl.'s Br. at 14. In his deposition, Martinez testified that Ward had a “history of bullying,” and that there had been “several incidents that have occurred” involving Ward. See id., Ex. L (Martinez Dep. Tr. at 24-25). Martinez testified that on one occasion, Ward was involved in a “dispute” with a security officer, which led to “shouting” and “both individuals pull[ing] their guns on each other.” See Martinez Dep. Tr. at 24-25. According to Martinez, no one was injured, and FPS investigated the incident, though he could not recall the findings of the investigation. Id. at 25. Martinez, however, did not provide any testimony about the race of the security officer involved in the dispute with Ward, and although Plaintiff states in his brief that the security officer is Black, see Pl.'s Br. at 14, there is no evidence in the record of the security officer's race. What's more, Martinez provided no testimony from which to infer that Ward's conduct towards the security officer during that incident was motivated by animus towards Black men. To the contrary, Martinez's testimony that Ward had a history of bullying supports an inference that Ward was simply prone to bullying behavior generally, regardless of the race of his target.
Additionally, Martinez testified that he also “had [his] own encounters” with Ward, where Ward was insubordinate, yelled at Martinez, and tried to bully him. See Martinez Dep. Tr. at 25. But Martinez is Hispanic, not Black. While “incidents relating to other minorities . . . cannot be ignored on summary judgment,” courts have found that such incidents “may be of limited probative value.” See Schwapp, 118 F.3d at 112. And, Plaintiff admits as much. See Pl.'s Br. at 16. That Ward bullied and harassed Martinez, who is not Black, only further underscores that Ward's general behavior was belligerent, regardless of the race of the recipient of that behavior. The incident with Martinez thus does nothing to substantiate Plaintiff's claim that Ward treated him disparately because he is Black.
Although there is no undisputed fact in the Rule 56.1 statement concerning Martinez's ethnicity, Plaintiff refers to Martinez as “Hispanic” in his brief, and Defendant does not contend otherwise in its reply brief. See Pl.'s Br. at 5, 14; Def's Reply Br. at 9.
Moreover, even if the March 5th incident, the e-mail chain, and Ward's behavior towards others were viewed collectively, the conduct in the aggregate still falls far short of establishing that Plaintiff's work environment was permeated with sufficiently severe and pervasive conduct. The handful of incidents that Plaintiff points to occurred over the span of Plaintiff's 10-year tenure at FPS. The incidents were thus isolated and sporadic, and therefore insufficient to establish a hostile work environment. See Sanderson v. Leg Apparel LLC, No. 19-CV-8423 (GHW), 2020 WL 7342742, at *6 (S.D.N.Y. Dec. 14, 2020) (explaining that harassing conduct “must be more than episodic” to support a hostile-work-environment claim); Alvarado v. Mount Pleasant Cottage Sch. Dist., 404 F.Supp.3d 763, 781 (S.D.N.Y. 2019) (noting “courts in this circuit have required more regularity” than isolated or sporadic incidents for a hostile-workenvironment claim); Fitchett v. City of New York, No. 18-CV-8144 (PAE), 2019 WL 3430726, at *12 (S.D.N.Y. July 30, 2019) (“[S]poradic, isolated incidents do not evince a broader atmosphere of hostility or abuse.”); Raspardo v. Carlone, 770 F.3d 97, 114 (“The incidents complained of . . . must be sufficiently continuous and concerted in order to be deemed pervasive.'”) (citation and internal quotation marks omitted); Whidbee, 223 F.3d at 69 (noting incidents of harassment must occur “either in concert or with a regularity that can reasonably be termed pervasive” and that incidents “few in number” may fail to demonstrate a hostile work environment) (citation and internal quotation marks omitted); see also Schwapp, 118 F.3d at 110 (“[I]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.”) (citation and internal quotation marks omitted).
In any case, even if Plaintiff had proffered sufficient admissible evidence from which a reasonable jury could find that Ward's conduct was objectively severe and pervasive, he has not offered sufficient evidence to raise a genuine issue of fact as to whether Ward's conduct occurred because of Plaintiff's race. Of course, “[i]t is axiomatic that mistreatment at work, whether through subjection to a hostile environment or through [other means], is actionable under Title VII only when it occurs because of an employee's . . . protected characteristic,” such as race. Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (citation omitted). Plaintiff admits that Ward never made a racially charged comment towards him. See Pl.'s Br. at 15-16. And Plaintiff has failed to proffer any evidence that the isolated incidents involving Ward were motivated by Ward's animus towards Blacks.
In sum, Plaintiff has not shown that Defendant's misconduct was motivated by animus towards his race or that the conduct was severe or pervasive enough to create an objectively hostile work environment.
Neither party raises any arguments as to whether Plaintiff subjectively perceived his work environment as abusive. But given this Court's findings that Plaintiff has not established an objectively hostile work environment or that Plaintiff was discriminated against on the basis of his race, even if you assume Plaintiff satisfied the subjective prong, the claim still fails.
CONCLUSION
For the reasons stated herein, I recommend that Defendant's motion for summary judgment be GRANTED.
SO ORDERED.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Lewis J. Liman. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).