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finding that plaintiff "cannot avail himself of the continuing violation exception" when "he has failed to show that his termination and any other alleged discriminatory acts were part of a specific discriminatory policy, mechanism, or program."
Summary of this case from Lute v. Dominion Nuclear Conn., Inc.Opinion
09 Civ. 8195 (FM)
09-30-2011
CHARLES K. AKA, Plaintiff, v. JACOB K. JAVITS CONVENTION CENTER OF NEW YORK, Defendant.
MEMORANDUM DECISION AND ORDER FRANK MAAS, United States Magistrate Judge.
I. Introduction
Plaintiff Charles K. Aka ("Aka"), a former carpenter at the Jacob K. Javits Convention Center of New York ("Javits Center"), brings this pro se action against the Javits Center, alleging that it discriminated against him on the basis of his age, race, and disability, and later retaliated against him. Aka seeks relief for these alleged wrongs under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"), the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL"), and the New York City Human Rights Law, N.Y. City Admin. Code § 8-107 ("NYCHRL").
The defendant notes that the entity that operates the Javits Center is the New York Convention Center Operating Corporation ("NYCCOC"). (See ECF No. 27 ("Def.'s 56.1 Stmt.") ¶ 2). Inasmuch as this appears to be correct, see Cokely v. N.Y. Convention Ctr. Operating Corp., No. 00 Civ. 4637 (CBM), 2004 WL 1152531, at * 1 (S.D.N.Y. May 21, 2004), the defendant is hereinafter referred to as NYCCOC.
Following the close of discovery, NYCCOC has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 25). For the reasons set forth below, that motion is granted.
II. Relevant Facts and Procedural History
Unless otherwise noted, the following facts are either undisputed or set forth in the light most favorable to Aka.
A. NYCCOC and the Javits Center
NYCCOC is a public benefit corporation established by New York Public Authorities Law § 2562 which operates the Javits Center in Manhattan. (See "Def.'s 56.1 Stmt. ¶¶ 1-2). "The Javits Center hosts many of the leading international and national trade shows, exhibitions and conventions," as well as other functions, such as banquets, corporate meetings, seminars, and examinations. (Id. ¶ 3).
When only NYCCOC's Rule 56.1 statement is cited, Aka either has not disputed the fact referenced or has failed to reference admissible evidence giving rise to a material factual issue.
Outside contractors, known as "General Decorating Contractors" or "Exhibit Appointed Contractors," oversee most of the work involved in planning, building, and dismantling exhibits at the Javits Center. (Id. ¶¶ 4-5). The contractors provide their own supervisors to manage the on-site work but hire laborers employed by NYCCOC to perform exhibit building work. (Id. ¶¶ 4-6). NYCCOC's laborers, also known as carpenters or journeyman carpenters, perform such tasks as crating and recrating freight; erecting and dismantling exhibits, displays, backgrounds, and booths; hanging or nailing flags, banners, and signs; laying rugs; delivering furniture; and installing draperies. (Id. ¶ 6). Although the carpenters are employed by NYCCOC, they work under the direction and supervision of the contractors. The contractors also "organize[] and determine[]" the carpenters' shifts. (Id. ¶ 7).
B. Collective Bargaining Agreement
The carpenters employed by NYCCOC are members of the District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO ("District Council" or "Union"). (Id.). The Union and NYCCOC have entered into a collective bargaining agreement ("CBA") that sets forth the terms and conditions governing the employment of the carpenters and journeyman carpenters who work at the Javits Center. (Id. ¶ 8; Decl. of Anne Tassone, dated Jan. 7, 2011 ("Tassone Decl."), Ex. A at D003-D004). Pursuant to the CBA, NYCCOC has "the sole and unfettered right to manage every aspect of the operation of the Javits Center." (Tassone Decl. Ex. A at D005). These rights include the right to (1) determine the "qualifications of all employees referred for employment at the Javits Center," (2) "refuse to employ any individual[] in [its] absolute and sole discretion," and (3) "terminate employees for violation of duly promulgated work rules." (Id. at D005-D006). The CBA further provides that NYCCOC "may, in its discretion, contract with other individuals or Employers to provide, among other things, supervision of the employees covered by [the CBA]" and that those other individuals or employers shall not be considered joint employers. (Id. at D007).
C. NYCCOC's Work Rules for Carpenters
NYCCOC sets forth its work rules for carpenters in the Show Labor Handbook for Exhibit Builders ("Handbook"). (Def.'s 56.1 Stmt. ¶ 11). The Handbook describes the two ways in which carpenters receive work assignments at the Javits Center. (See Suppl. Decl. of Kevin R. Brady, Esq., dated Apr. 1, 2011 ("Brady Suppl. Decl."), Ex. A at D042-D044). Under the first method, prior to installing exhibits, contractors at the Javits Center inform NYCCOC of their labor needs; NYCCOC's manager of exhibit carpenters (also known as the "Carpenter Manager") then assigns specific carpenters to work with the contractors. (See id. at D042; Def.'s 56.1 Stmt. ¶ 14). Assignment decisions are based on the carpenter's "past reliability" and the opinions of the contractor, exhibitor, and Javits Center foreman concerning that carpenter's work. (Brady Suppl. Decl. Ex. A at D040).
Carpenters also may be selected as "stand-by" labor to replace carpenters who are absent or to meet a contractor's unanticipated needs. (Id. at D044; Def.'s 56.1 Stmt. ¶ 12). Stand-by labor assignments are made by lottery at the beginning of a scheduled shift. (Brady Suppl. Decl. Ex. A at D044). The carpenter foreman conducts the lottery by writing each of the carpenters' names and badge numbers on separate pieces of paper, inserting them in a box, mixing the papers, and randomly selecting as many carpenters as are necessary for that work shift. (Id.; see also Def.'s 56.1 Stmt. ¶ 12). The lottery process is also known as "shaping"; the box, perhaps not surprisingly, is referred to as the "shaping box." (Def.'s 56.1 Stmt. ¶ 12).
In the Handbook, the person conducting the lottery is referred to as the "sign in desk administrator." (Brady Suppl. Decl. Ex. A at D044).
According to Aka, if a contractor refuses to work with a particular carpenter selected during shaping, the contractor must provide an "instant explanation or report" to NYCCOC, and submit an evaluation to the carpenter's general foreman that same day. (ECF No. 36 ("Pl.'s Opp'n") at 4). Aka further alleges that such reports and evaluations must be submitted with the rejected employee's "clear knowledge" and that "overdue" evaluations are "unacceptable." (Id. at 4-5). The Handbook annexed to NYCCOC's papers, however, does not contain any language imposing such requirements. (See ECF No. 38 ("Def.'s Reply Mem.") at 1 n.1; Brady Suppl. Decl. Ex. A). The Handbook does state that a carpenter's work performance is subject to evaluation "[f]rom time to time" by the Javits Center general foreman or management. (Brady Suppl. Decl. Ex. A at D052). Additionally, the written evaluations are "normally . . . recorded and filed in the General Foreman's office." (Id.).
D. Aka's Work as a Carpenter
Aka is a sixty-five year old African-American man who began working at the Javits Center as a part-time apprentice carpenter in 1998. (Def.'s 56.1 Stmt. ¶ 13; see ECF No. 1, Ex. A ("Compl." or "Complaint")). As an apprentice carpenter, Aka was required to join the Union and attend a four-year apprentice training program conducted by the District Council. (Def.'s 56.1 Stmt. ¶ 13). In 2003, after completing the apprenticeship program, Aka earned the title of "Journeyman" carpenter. (Id. ¶ 17). When Aka worked at the Javits Center, Anne Tassone ("Tassone") was the Carpenter Manager; she "was personally responsible for assigning work" to him. (Id. ¶ 14).
Aka contends that he was a "good" journeyman carpenter, but concedes that his professional development was ongoing and that he continued to learn new skills from senior carpenters. (Pl.'s Opp'n Ex. Q2 ("Dep.") at 101 ("[W]hen you become a journeyman, the profession continues, it doesn't end there. Because you learn from your seniors . . . .")). The contractors' written evaluations, however, characterize Aka's work quite differently. In 2004 and 2005, several contractors with whom Aka worked submitted negative evaluations to NYCCOC, criticizing his attitude, judgment, carpentry skills, and punctuality. (Tassone Decl. Exs. G-K). Aka describes these evaluations as "bogus," "deceptive," "fake," "fabricated," "ludicrous," and "malicious." (Pl.'s Opp'n at 9-10, 12-13, 18-19). In any event, Aka continued working with several of the contractors that submitted negative evaluations. (Id. at 16).
E. Aka's Complaints to NYCCOC in 2004 and 2006
Over time, Aka lodged several complaints with NYCCOC's management about his work schedule and certain of the contractors with whom he worked. One such complaint related to a contractor named Manny Stone Decorators, which did not permit Aka and another African-American carpenter to work on its crew on January 13, 2004. (Id. at 11). After Manny Stone Decorators failed to provide a contemporaneous explanation of its decision, Aka reported the incident to NYCCOC's labor department. (Id.). Tassone, the Carpenter Manager, then informed Aka that Manny Stone Decorators had submitted a negative evaluation of his work. (Id.; see Tassone Decl. Ex. G (employee evaluation of Aka by Manny Stone Decorators, dated Jan. 13, 2004 (describing Aka as a "terrible" worker))). A few days later, Aka sent NYCCOC's human resources director a letter regarding "[d]iscrimination and [h]arassment." (Pl.'s Opp'n Ex. O). That letter discussed Manny Stone Decorators and challenged at least one other negative contractor evaluation. (Id.). Aka also noted that one contractor had submitted a positive evaluation but that he had not received a copy. (Id.).
On January 30, 2004, Aka filed a complaint with the Union because Tassone had not assigned him work for seventy-four days. (See Pl's Opp'n at 34). In response, NYCCOC claimed that Aka could not read blueprints. (Id.). Aka insisted that he in fact possessed adequate blueprint reading skills, as demonstrated by his receipt of an "excellent" evaluation in a blueprint class at the District Council Technical College. (Id. at 35). In his complaint, Aka further contended that he had been subject to harassment and discrimination by managers at the Javits Center. (Id.). A manager from NYCCOC's labor office and a representative of the Union both intervened to assure Aka that he would obtain work and that the alleged harassment and discrimination would cease. (Id. at 35-36 & Ex. M2; see also Dep. 120-21).
In 2006, Aka made several complaints to NYCCOC managers about the shaping process. On one such occasion in October 2006, after the lottery had been conducted, Aka discovered that his name was missing from the shaping box, causing him not to be selected for work. (Pl.'s Opp'n at 38-39). Similarly, in November 2006, a carpenter from Barbados, who was not selected from the lottery, discovered that the paper containing his name was not in the shaping box at the conclusion of the lottery, but had instead been thrown in the trash. (Id. at 39-40). Aka and other carpenters complained to NYCCOC's human resources department about this incident, which the assistant to NYCCOC's CEO promised to investigate. (Id. at 40-41).
F. Events of January 11, 2007
During his employment with NYCCOC, Aka worked several times with a contractor named Exhibit Installation Specialists, Inc. ("EIS"), which never completed a written evaluation of Aka's work. (Dep. 125; see also Pl.'s Opp'n at 19-20).
On January 11, 2007, there was a lottery to select stand-by carpenters to work with EIS. (See Def.'s 56.1 Stmt. ¶ 22). Although Aka's name was pulled from the shaping box, EIS refused to accept him as a member of its work crew. (Id.). According to Aka, EIS did so without providing an explanation. (Pl.'s Opp'n at 20). NYCCOC contends that EIS "asked that [Aka] not be assigned to future work because it was dissatisfied with his prior work performance and ability." (Def.'s 56.1 Stmt. ¶ 22). Aka claims to have been "astonished" that he was rejected after having worked with EIS on several prior occasions. (Dep. 125). Aka complained to his shop steward and foreman, but they did not know why EIS had rejected him. (Id. at 125-26).
Aka also complained about the EIS rejection to Edward Bielen ("Bielen"), who was his immediate supervisor. (Id. at 126). Aka told Bielen that he had been "harassed" and did not understand why EIS had refused him. (Id.). Because Bielen was busy at that moment, he made an appointment with Aka to discuss the matter further on January 16, 2007. (Id.).
After EIS rejected Aka on January 11, 2007, his name was reinserted into the shaping box, and he was selected to work with another contractor for the remainder of the day. (Id. at 126-27). While on a break, Aka fell and fractured his ankle. (Id. at 127). Aka then took an extended leave of absence related to his injury. (See Def.'s 56.1 Stmt. ¶ 25). He consequently did not meet with Bielen on January 16 as previously planned. (See Decl. of Kevin R. Brady, Esq., dated Jan. 10, 2011 ("Brady Decl."), Ex. 5).
G. Aka's Complaints to NYCCOC in 2007
On January 23, 2007, during his leave of absence, Aka wrote to Deborah Richardson de Cuevas ("Richardson de Cuevas"), NYCCOC's equal employment opportunity compliance manager, regarding the incident with EIS. (Def.'s 56.1 Stmt. ¶ 26; Brady Decl. Ex. 5). Aka complained that EIS had refused to employ him on January 11, 2007, "without giving an explanation," and that this had caused him to be "emotionally hurt." (Brady Decl. Ex. 5). Aka further stated that he was unable to keep his appointment with Bielen because of his injury. (Id.). Although Aka noted that he "still [did] not know the reason" that EIS had rejected him, he did not suggest that EIS's action was discriminatory. (Id.).
Having received no response from NYCCOC, Aka took a taxi to the Javits Center on August 9, 2007, to speak to Richardson de Cuevas and other managers. (Dep. 141-42). At that time, Aka still was using crutches because of his ankle fracture. (See id.). During his visit, Aka met with Michelle Green ("Green"), who assisted Aka with his workers' compensation paperwork. Aka told Green about his "case" and asked to see Paul Hiler ("Hiler"), NYCCOC's human resources director. (Id. at 142; Pl.'s Opp'n at 21). After Aka informed Hiler about his "case," Hiler brought him to Richardson de Cuevas's office and asked her to investigate Aka's case. (Dep. 142-43). Richardson de Cuevas, in turn, asked Aka several questions about the incident with EIS. (Id. at 144-45). Aka told her that he did not know the race of the EIS supervisor who rejected him, but that he likely was white because all of the EIS supervisors were white. (Id. at 145). At the conclusion of their meeting, Richardson de Cuevas told Aka that she had "writ[ten] down" and "investigated everything." (Id. at 146). She also told Aka, "[a]nywhere you want to take your case, you can take your case." (Id.).
Aka initially testified that he went to the Javits Center in April 2007, but subsequently said the visit occurred in August 2007. (Dep. 140, 142).
The Aka deposition transcript refers to this individual as "John Hiller." (Dep. 142).
According to Aka, Richardson de Cuevas's investigation of his complaint involved speaking with Bielen and John Dillon, who worked in NYCCOC's labor department. (See id. at 145-46). Bielen allegedly told Richardson de Cuevas that EIS had said that Aka was a poor worker. (Id. at 146). Aka suggests that Richardson de Cuevas concluded, based on her investigation, that EIS's refusal to work with Aka was discriminatory. (See id. at 145 ("Discrimination will come after the investigation of de Cuevas."); see also id. at 146 (after Richardson de Cuevas told Aka that he could take his case "anywhere," Aka concluded that "they [had] discriminated against" him)), 147 (at some unspecified time, Richardson de Cuevas told Aka that he "ha[d] a case.")
H. Aka's Termination
After injuring himself on January 11, 2007, Aka took a leave of absence which extended into early 2008. (See Def.'s 56.1 Stmt. ¶ 28). On January 8, 2008, nearly one year after Aka's fall, Hiler informed Aka, in writing, that NYCCOC expected him to return to work "on or before January 15, 2008." (Tassone Decl. Ex. M). Hiler further indicated that before Aka could return, NYCCOC would need "a certification of [his] fitness to return to work." (Id.). Hiler stated that Aka's employment would be "terminated effective January 15, 2008," if he did not comply. (Id.). As Hiler explained, NYCCOC was "taking this action for the purpose of maintaining a steady, reliable and adequate workforce." (Id.).
By January 2008, Aka had retained Pamela A. Elisofon, Esq. ("Elisofon"), as his counsel. (See Pl.'s Opp'n Ex. B). On Aka's behalf, Elisofon wrote to Hiler on January 14, 2008, stating that Aka would "not be able to obtain [medical] clearance [to return to work] on or before January 15, 2008." (Id.). At that time, Aka's medical provider apparently had indicated that he had a "'total temporary disability' with a guarded prognosis." (Id.). Elisofon stated that Aka was expected to follow up with his doctor "in one month (from 12/31/07) at which time his ability to return to work will be determined." (Id.). She explained that Aka needed an MRI and was awaiting approval for this test from his insurance carrier. (Id.). Elisofon requested that Aka remain a Javits Center employee "until he [could] obtain medical clearance and return to work." (Id.).
By letter dated January 18, 2008, despite Elisofon's request, Hiler informed Aka that, because he had not returned to work, NYCCOC had to "terminate [his] employment effective January 15, 2008." (Tassone Decl. Ex. N). Hiler again explained that NYCCOC was "taking this action for the purpose of maintaining a steady, reliable and adequate workforce." (Id.).
I. EEOC Charge and the Instant Action
On March 17, 2008, approximately two months after his termination, Aka filed a charge of discrimination with the federal Equal Employment Opportunity Commission ("EEOC"). (See Brady Decl. Ex. 6 ("EEOC Charge")). Aka alleged in his charge, which was prepared by Elisofon, that NYCCOC had discriminated against him based on his race, color, national origin, age, and disability, and also had retaliated against him. (Id. at 4). Aka indicated that NYCCOC's discriminatory actions against him were "continuing," and that the earliest incident had taken place on May 1, 2007, with the most recent occurring on January 15, 2008. (Id.). Aka requested that the 300-day statute of limitations for filing a charge be tolled because of the physical injury he had sustained as a result of his on-the-job fall on January 11, 2007. (Id. at 4-6).
In an affidavit annexed to the EEOC charge, Aka claimed that several incidents constituted unlawful discrimination and retaliation against him. These included: (a) EIS's refusal to work with him on January 11, 2007; (b) NYCCOC's termination of Aka's employment in January 2008; (c) the negative evaluations of Aka's work submitted by certain contractors at the Javits Center; and (d) NYCCOC's accusation that Aka could not read blueprints. (Id. at 6-9). Aka also contended that his termination constituted unlawful retaliation for his "reporting [of] racial bias to his supervisors" and the disability arising out of his accident on January 11, 2007. (Id. at 7). Finally, Aka's affidavit intimated that he had suffered retaliation due to his participation in a prior discrimination class-action lawsuit against NYCCOC. (Id. (citing Cokely v. N.Y. Convention Ctr. Operating Corp., No. 00 Civ. 4637 (CBM), 2004 WL 1152531 (S.D.N.Y. May 21, 2004))). In that action, Aka received a payment of $12,500. (Id.).
In addition to the injury suffered on January 11, 2007, Aka suggested that he had a medical disability related to an accident in 2000 that had injured his shoulder, knee, ribs and elbow. (EEOC Charge at 7).
In his EEOC charge, Aka further contended that EIS and NYCCOC had violated certain internal policies, thereby further evidencing NYCCOC's discriminatory animus. (Id. at 7-8). For example, according to Aka, contractors that rejected a carpenter were required to explain their decision in writing within hours of that rejection. EIS, however, allegedly failed to comply with this practice when it refused to work with him in January 2007. (Id. at 7). Aka also alleged that NYCCOC violated "Javits' policies and procedures" by failing to provide him with copies of the contractors' evaluations of his work. (Id. at 8). Aka first received those evaluations three years after he submitted a request for them. (Id.).
On May 22, 2009, the EEOC issued Aka a right-to-sue letter. (See Brady Decl. Ex. 7). Subsequently, on August 20, 2009, proceeding pro se, Aka commenced an action against the Javits Center in Supreme Court, Bronx County. (See ECF No. 1 (Notice of Removal)). In his complaint, Aka alleged that the Javits Center had violated Title VII, and the ADEA, ADA, NYSHRL, and NYCHRL by terminating him and "enter[ing] into a complicit relationship with its vendor EIS by not upholding" federal law. (Compl. ¶ 10). Aka also alleged that EIS had "rejected him for discriminatory reasons." (Id. ¶ 6).
On September 25, 2009, NYCCOC removed Aka's action to this Court pursuant to 28 U.S.C. §§ 1441, 1446. (See Notice of Removal). Thereafter, in January 2011, pursuant to 28 U.S.C. § 636(c), the parties consented to my exercise of jurisdiction over the matter for the purpose of deciding NYCCOC's motion for summary judgment. (ECF No. 23). NYCCOC subsequently filed that motion on January 10, 2011. (ECF Nos. 25-31). Aka filed opposition papers on March 17, 2011, (ECF Nos. 35-36), and NYCCOC filed reply papers on April 1, 2011, (ECF Nos. 37-39). NYCCOC's motion therefore is fully submitted.
III. Applicable Law
A. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact" based on supporting materials in the record. Fed. R. Civ. P. 56. In deciding a motion for summary judgment, the Court must "view the evidence in the light most favorable to the party opposing summary judgment and must draw all permissible inferences" in favor of that party. Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 78 (2d Cir. 2002) (quoting Gummo v. Vill. of Depew, N.Y., 75 F.3d 98, 107 (2d Cir. 1996); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). The Court also must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. See Beyer v. Cnty. of Nassau, 524 F.3d 160, 164 (2d Cir. 2008). Assessments of credibility, choosing between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the Court. Fischl, 128 F.3d at 55. Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Id. at 55.
To defeat a motion for summary judgment, however, the non-moving party cannot simply rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
Although the same summary judgment rules apply to a party proceeding pro se, special latitude is appropriate to ensure that a meritorious claim is not foreclosed simply because the papers submitted in opposition to the motion are inartfully worded. See Milano v. Astrue, No. 05 Civ. 6527 (KMW) (DCF), 2009 WL 1150186, at *1 n.1 (S.D.N.Y. Apr. 29, 2009); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (pro se complaint should be held to less stringent standard than formal pleadings drafted by counsel); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (pleadings should be read liberally and interpreted to "raise the strongest arguments that they suggest") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). By the same token, however, a pro se party's "bald assertion, completely unsupported by evidence," is not sufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
B. Title VII, ADEA and ADA
Title VII provides that "[i]t shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise 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).
Under the ADEA, it is unlawful for "an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The protections of the ADEA, however, extend only to persons who are "at least 40 years of age." Id. § 631(a).
The ADA prohibits discrimination by an employer covered by the ADA against a "qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
C. McDonnell Douglas Framework
To overcome a motion for summary judgment with respect to claims under Title VII, the ADEA, and the ADA, "a discrimination plaintiff must withstand the three-part burden-shifting laid out by McDonnell Douglas Corp. v. Green," 411 U.S. 792, 802-03 (1973). McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 (2d Cir. 2006) (ADEA); see Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005) (Title VII); Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999) (ADA). Under that rubric, the plaintiff must satisfy an initial burden of "proving by the preponderance of the evidence a prima facie case of discrimination." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case under Title VII and the ADEA, an employee must show that: (1) he was within the protected class; (2) his job performance was satisfactory; (3) he was subjected to an adverse employment decision or discharge; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. See Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006); Stratton v. Dep't for the Aging, 132 F.3d 869, 879 (2d Cir. 1997). A prima facie case under the ADA requires a plaintiff to establish that: (1) his employer is subject to the ADA; (2) he had a disability within the meaning of the ADA; (3) he could perform the essential functions of his job with or without reasonable accommodation; and (4) he suffered an adverse employment action because of his disability. Capobianco v. City of N.Y., 422 F.3d 47, 56 (2d Cir. 2005).
"A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment." Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks omitted). Among the actions that qualify as materially adverse are "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities." Id.
Once the plaintiff makes out a prima facie case, "a rebuttable presumption of discrimination arises and the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision." Sharpe v. MCI Commc'ns Servs., Inc., 684 F. Supp. 2d 394, 401 (S.D.N.Y. 2010) (quoting Stratton, 132 F.3d at 879); see Heyman, 198 F.3d at 72 (citing Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 38 (2d Cir. 1994)); Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). The purpose of this step is "to force the defendant to give an explanation for its conduct, in order to prevent employers from simply remaining silent while the plaintiff founders on the difficulty of proving discriminatory intent." Felder v. Securitcus Sec. Serv., No. 04 Civ. 9501 (LAK), 2006 WL 2627969, at *7 (S.D.N.Y. Sept. 12, 2006) (quoting Fisher v. Vassar Coll., 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc)).
Finally, if the defendant provides a nondiscriminatory rationale for its conduct, the rebuttable presumption drops out of the case. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). The burden then rests on the plaintiff to prove not only that the proffered nondiscriminatory reason was pretextual, but also that the defendant discriminated against the plaintiff. Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 93-94 (2d Cir. 2001); Fleming v. Verizon N.Y., Inc., No. 03 Civ. 5639 (WHP), 2006 WL 2709766, at *15 (S.D.N.Y. Sept. 22, 2006) (citing James v. N.Y. Racing Ass'n, 233 F.3d 149, 153-54 (2d Cir. 2000)). In other words, "the burden shifts back to the plaintiff to prove that discrimination was the real reason for the employment action." Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
D. Retaliation
Title VII, the ADEA, and the ADA each make it unlawful for an employer to retaliate against an employee who has exercised his statutory right to complain about conduct that he considers discriminatory. 29 U.S.C. § 623(d); 42 U.S.C. §§ 2000e-3(a), 12203(a). A retaliation claim is "not dependent on the merits of the underlying discrimination complaint." Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir. 1986). Thus, to establish a prima facie case of retaliation, an employee need only show that: (1) he engaged in a protected activity; (2) the employer knew of this activity; (3) the employer took adverse action against the employee; and (4) there was a causal relation between the adverse action and the employee's protected activity. Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001); Holt v. KMI-Cont'l, Inc., 95 F.3d 123, 130 (2d Cir. 1996).
Mere temporal proximity between a plaintiff's protected activity and an adverse employment action is sufficient to create an inference of retaliation for purposes of proving a prima facie case. El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 932-33 (2d Cir. 2010); Simpson v. N.Y. State Dep't of Civil Serv., 166 F. App'x 499, 502 (2d Cir. 2006). However, temporal proximity, without more, "is insufficient to satisfy [the plaintiff's] burden to bring forward some evidence of pretext" at the third stage of the McDonnell Douglas inquiry. El Sayed, 627 F.3d at 933; Simpson, 166 F. App'x at 502.
E. State and City Law
The NYSHRL and NYCHRL prohibit an employer from discriminating against an employee in the terms, conditions, or privileges of employment on the basis of age, gender, or race. Both statutes also prohibit retaliation against an employee who has opposed unlawful discrimination or participated in a proceeding arising under those laws. See N.Y. Exec. Law § 296(1)(a), (7); N.Y. City Admin. Code § 8-107(1)(a), (7). The framework for analyzing NYSHRL and NYCHRL discrimination claims is essentially the same as under federal anti-discrimination statutes. See, e.g., Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010) ("[A] plaintiff's discrimination claims under both the NYSHRL and the NYCHRL are subject to the burden-shifting analysis applied to discrimination claims under Title VII."); Leibowitz v. Cornell Univ., 584 F.3d 487, 498 n.1 (2d Cir. 2009) (applying Title VII analysis to state and municipal claims in New York); Rosenblatt v. Bivona & Cohen, P.C., 946 F. Supp. 298, 300 (S.D.N.Y. 1996) (stating that the NYSHRL "is applied in a fashion consistent with the federal civil rights laws"). The New York City Council has enacted legislation, however, which requires that claims under the NYCHRL be construed more liberally than claims under its state and federal counterparts. See Local Civil Rights Restoration Act, N.Y.C. Local Law No. 85 (2005); see also Fowler v. Scores Holding Co., 677 F. Supp. 2d 673, 682 (S.D.N.Y. 2009) (quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009)) (pursuant to Restoration Act, "all provisions of the [NYCHRL] require[] independent construction to accomplish the law's uniquely broad purposes").
IV. Application of Law to Facts
A. Notice of Claim and Statute of Limitations
1. State and City Law Claims
NYCCOC contends that Aka's NYSHRL and NYCHRL claims are barred because he failed to serve a notice of claim on NYCCOC pursuant to New York Public Authorities Law § 2570. (ECF No. 30 ("Def.'s Mem.") at 9). Aka concedes that he did not serve a notice of claim, (see Dep. 226-27), but suggests that one was not required because: (a) NYCCOC "kn[e]w the rules better than [he did];" (b) the Javits Center's "unprofessional attitude . . . prevented" him from serving the notice of claim; and (c) he had filed a charge with the EEOC prior to bringing the instant lawsuit. (Pl.'s Opp'n at 28). Aka has not requested leave to file a late notice of claim.
Federal courts must "apply state notice of claim provisions to causes of action brought under state and local law, but not to causes of action brought under federal law." Aguilar v. N.Y. Convention Ctr. Operating Corp., 174 F. Supp. 2d 49, 53 n.3 (S.D.N.Y. 2001) (citing Felder v. Casey, 487 U.S. 131, 141, 151 (1988)).
Section 2570 of the New York Public Authorities Law § 2570 provides that
[a] notice of claim, served in accordance with the provisions of section fifty-e of the general municipal law, shall be a condition precedent to the commencement of an action against [NYCCOC], its directors, officers, employees or agents. No such action shall be commenced more than one year after it has accrued, except that an action against [NYCCOC] for wrongful death shall be commenced in accordance with the notice of claim and time limitation provisions of title eleven of article nine of this chapter.N.Y. Pub. Auth. Law § 2570 (emphasis added). Section 50-e of the New York General Municipal Law, in turn, requires that, "[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, . . . the notice of claim shall . . . be served . . . within ninety days after the claim arises." N.Y. Gen. Mun. Law § 50-e(1)(a). Although Section 50-e on its face appears to apply to tort actions only, courts in this District have found that its procedural requirements apply to NYSHRL and NYCHRL claims brought against the NYCCOC. See Aguilar, 174 F. Supp. 2d at 54-55 (concluding that "[S]ection 2570 incorporates [S]ection 50-e only with respect to the procedure required for serving a notice of claim") (emphasis in original). Before commencing suit, Aka therefore was required to serve a notice of claim on NYCCOC within ninety days of the allegedly discriminatory or retaliatory act upon which his suit is based.
Aka clearly has not complied with the notice of claim requirement. Moreover, the reasons that he proffers for failing to do so are insufficient to save his NYSHRL and NYCHRL claims. Despite Aka's allegation that NYCCOC had an "unprofessional attitude," he has offered no evidence indicating that NYCCOC intentionally or negligently prevented him from timely serving a notice of claim. Cf. Bethel v. N.Y. City Transit Auth., 626 N.Y.S.2d 185, 186 (1st Dep't 1995) (equitably estopping defendants from asserting lack of proper notice because "their conduct was calculated to, or negligently did, mislead or discourage the plaintiff from serving a timely notice of claim"). Aka's contention that his fractured ankle excuses his failure to serve timely notice also is meritless. See Montanez v. City of N.Y., 548 N.Y.S.2d 441, 441 (1st Dep't 1989) (plaintiff's broken leg "was not an incapacitation preventing the filing of a [notice of] claim" during the ninety-day period). Finally, Aka's ignorance of the notice requirement also does not save his state and city law claims. See Landa v. City of N.Y., 675 N.Y.S.2d 377, 378 (2d Dep't 1998) (plaintiff's "ignorance of the filing requirement constituted an inadequate explanation" for the delay in filing his notice of claim).
Aka appears to contend that a notice of claim was, in any event, unnecessary because NYCCOC had learned of his discrimination claims through his filing of the EEOC charge in March 2008, only two months after his termination. In deciding whether to grant a plaintiff's application to file a late notice of claim, New York courts consider whether the defendant "acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter." DiBella v. City of N.Y., 650 N.Y.S.2d 311, 312 (2d Dep't 1996), lv denied, 661 N.Y.S.2d 831 (1997). In this case, Aka has not sought leave to file a late notice of claim. Even more importantly, this Court lacks jurisdiction to entertain such a request. See N.Y. Gen. Mun. Law § 50-e(7) ("[a]ll applications [for leave to file a late notice of claim] should be made to the [state] supreme court or to the county court"). Although NYCCOC's actual knowledge of Aka's claims could weigh in favor of permitting him to file a late notice of claim had his suit remained in state court, it does not avoid the fact that Aka never served a notice of claim on NYCCOC. Inasmuch as this Court cannot cure this defect, Aka's NYSHRL and NYCHRL claims must be dismissed.
Aka also suggests that he failed to file a notice of claim because he was represented by counsel at the time service was required. (See Dep. 226 ("Q. Okay. You did not file a notice? A. My lawyer was speaking for me.")). Even if an error on the part of Aka's former counsel contributed to his noncompliance, that would not save his NYSHRL and NYCHRL claims. See Deegan v. City of N.Y., 643 N.Y.S.2d 596, 597 (2d Dep't 1996) (plaintiff's former attorney's "law office failure" did not justify granting leave to file late notice).
2. Statute of Limitations for Title VII, ADEA, and ADA Claims
"Title VII, the ADA and the ADEA require claimants to file a charge of discrimination with the EEOC (or with the similar state agency, here, the New York State Division of Human Rights) within 300 days of the alleged discriminatory employment action; claims for acts that occurred more than 300 days before the filing are time-barred in federal court." Adams v. N.Y. State Educ. Dep't, 752 F. Supp. 2d 420, 465 n.52 (S.D.N.Y. 2010) (citing 29 U.S.C. § 626(d)(1)(B); 42 U.S.C. §§ 12117(a), 2000e-5(e)(1)). There are four possible ways, however, to overcome the limitations period. First, the Second Circuit has held that the 300-day limitations period is "subject to waiver, estoppel, and equitable tolling." Downey v. Runyon, 160 F.3d 139, 145-46 (2d Cir. 1998) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). Additionally, a plaintiff may rely on the "continuing violation exception." See Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004). Under this exception, if a plaintiff "files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Nghiem v. U.S. Dep't of Veterans Affairs, 323 F. App'x 16, 17 (2d Cir. 2009) (quoting Patterson, 375 F.3d at 220). "[D]iscrete discriminatory acts," however, such as termination, failure to promote, or refusal to hire, "are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14 (2002). Thus, each "discrete act" of discrimination or retaliation "constitutes a separate actionable 'unlawful employment practice.'" Id. at 114.
In this case, Aka filed a charge of discrimination with the EEOC on March 17, 2008. (See EEOC Charge). Any employment actions that occurred more than 300 days before March 17, 2008 — i.e., before May 22, 2007 — therefore are time-barred. Aka's termination effective January 15, 2008, two months before he filed the EEOC charge, is certainly well within the limitations period. However, each of the additional employment actions about which Aka complains — EIS's refusal to work with him in January 2007, the other incidents relating to work assignments and shaping in 2004 and 2006, and the allegedly discriminatory evaluations submitted by contractors in 2004 and 2005 — fall outside the limitations period. Accordingly, unless Aka is able to overcome this hurdle in one of the four ways set forth above, the only claim that he has asserted in a timely manner are those related to his termination.
Aka also alleges that NYCCOC "aided and abetted" EIS's allegedly discriminatory rejection of Aka in January 2007. (Dep. 219). Assuming that such an aiding and abetting claim may be asserted under Title VII and the ADEA, it nevertheless plainly falls outside the statute of limitations.
Although Aka does not present his arguments in an organized fashion, it appears that he seeks to invoke the continuing violation exception and to toll the statute of limitations because of the injury he sustained on January 11, 2007. (See Pl.'s Opp'n at 13 (alleging that this case is "another example" of how contractors at the Javits Cernter "contrive to discriminate"); EEOC Charge at 4-6 (requesting equitable tolling)). Aka's showing is insufficient under either theory to overcome the limitations period.
Turning first to the continuing violation exception, Aka has failed to proffer any evidence suggesting that his termination constituted an "incident of discrimination in furtherance of an ongoing policy of discrimination." Lu v. Chase Inv. Servs. Corp., 412 F. App'x 413, 416 (2d Cir. 2011) (quoting Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993). Although many of Aka's complaints concerning NYCCOC involve Tassone, (see, e.g., Pl.'s Opp'n at 12 (alleging that Tassone subjected Aka to "harassment, discriminatory practices, and disingenuous behaviors . . . over a notable period of time")), he has failed to show that his termination and any other alleged discriminatory acts were part of a specific discriminatory policy, mechanism, or program. In particular, Aka's conclusory statements that contractors at the Javits Center have engaged in several instances of discrimination and favoritism do not suffice to establish that NYCCOC had a policy of discrimination. Moreover, Aka's termination — a discrete employment act that falls within the limitations period — cannot be used to "pull in the time-barred discriminatory act[s]." See Morgan, 536 U.S. at 113 (citing Del. State Coll. v. Ricks, 449 U.S. 250, 257 (1980)). Aka therefore cannot avail himself of the continuing violation exception to the statute of limitations.
Aka seeks equitable tolling of the limitations period after January 11, 2007 — the date that EIS refused to work with him — because of his ankle fracture. (See EEOC Charge at 4-6 (requesting equitable tolling due to a "disability" that rendered him "immobile")). Equitable tolling of the statute of limitations in discrimination cases "is permissible, but only 'in rare and exceptional circumstances, in which a party is prevented in some extraordinary way from exercising his rights.'" Haghpassand v. Reuters Am. Inc., 120 F. App'x 859, 862 (2d Cir. 2005) (quoting Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003)). The plaintiff bears the burden of showing both extraordinary circumstances and that he pursued his rights diligently during the time period that he seeks to toll. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000). Tolling consequently may be appropriate when a plaintiff's medical condition or mental impairment prevented him from initiating suit in a timely manner. Zerilli-Edelglass, 333 F.3d at 80. The plaintiff, however, must proffer a "particularized description of how h[is] condition adversely affected h[is] capacity to function generally or in relationship to the pursuit of h[is] rights." Boos, 201 F.3d at 185.
The ankle fracture that Aka suffered as a result of his on-the-job accident on January 11, 2007, does not satisfy the high bar that courts have required for equitable tolling. Compare Thon v. Marshall, No. 08 Civ. 292 (RWS), 2011 WL 519454, at *1 (S.D.N.Y. Feb. 11, 2011) (habeas petitioner's back pain, herniated disk, and related surgery insufficient to justify tolling), with Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011) (extraordinary circumstances established because habeas petitioner was hospitalized, underwent six surgeries, and was heavily medicated during limitations period). Aka has not provided any medical documentation of his injury, and thus has failed to describe with the requisite particularity his medical condition and its effect on his capacity to press his claims. Moreover, Aka was able to travel by taxi to the Javits Center on one occasion during the 300-day period following his injury. At the time of that visit in August 2007, Aka walked with the assistance of crutches, but obviously had the ability to move about and to converse with NYCCOC officials. (See Dep. 141-42). It follows that Aka's argument that the limitations period should be tolled because he was "immobile" is unpersuasive.
Aka also has not shown that he diligently pursued his rights during the 300-day period following the EIS incident. Indeed, aside from his visit to the Javits Center, he did not make any efforts to pursue his discrimination claims. Although Aka contends that he decided that EIS's action was discriminatory in August 2007, after he met with Richardson de Cuevas at the Javits Center, (see id. at 145-46), even then he did not file his EEOC charge until March 17, 2008 — approximately seven months after he concluded that he had been subject to discrimination and fourteen months after the alleged discriminatory action.
In these circumstances, Aka has failed to adduce evidence of the sort of extraordinary circumstances that would justify tolling of the statute of limitations.
B. Discrimination
As a consequence, the only allegedly discriminatory employment action that this Court can address is Aka's termination in January 2008. Aka claims that his termination was unlawfully based on his age, race, color, national origin, and disability. (See EEOC Charge at 4). NYCCOC disputes that claim, arguing that Aka has failed to establish a prima facie case of discrimination, and that its decision to terminate his employment was based on legitimate, nondiscriminatory reasons. (Def.'s Mem. at 11-16).
Aka also complained during his deposition that NYCCOC did not "do anything about" the EIS incident. (Dep. 158; see also id. at 148 (Aka's testimony that he sued the Javits Center for "[t]otal negligence to [his] case")). To the extent that Aka asserts a discrimination claim against NYCCOC for its failure to adequately investigate his complaints about EIS, his claim is without merit. Aka has not shown that NYCCOC's alleged failure to investigate his complaint about EIS constituted an adverse employment action. See Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 721-22 (2d Cir. 2010) (in context of retaliation claim, employer's failure to investigate employee's discrimination complaint does not constitute adverse employment action).
1. Title VII and ADEA Prima Facie Case
It seems clear that Aka can satisfy three of the four required elements of his prima facie case under Title VII and the ADEA. Indeed, Aka is a member of at least two protected classes since he was over forty years old when he was terminated and is an African-American. Aka's termination also plainly constituted an adverse employment action. Furthermore, despite evidence that certain contractors disapproved of Aka's work, NYCCOC does not challenge Aka's qualifications as a journeyman carpenter as part of its present motion. Accordingly, the sole remaining issue with respect to Aka's prima facie case under these statutes is whether he can show that the circumstances surrounding his termination give rise to an inference of discrimination based on his age, race, national origin, or color.
Aka has not proffered any admissible evidence that gives rise to an inference that NYCCOC terminated him based on any of these factors. Insofar as he seeks relief under the ADEA, Aka's papers and testimony do not contain so much as a scintilla of evidence that he was singled out because of his age or that NYCCOC treated younger carpenters differently than older carpenters. The mere fact that Aka was sixty-two years old when he was terminated, (see EEOC Charge at 5), is not enough to create a triable issue of material fact with respect to his claim that NYCCOC acted out of an ageist animus when it terminated his employment. See Sklar v. N.Y. Life Ins. Co., No. 00 Civ. 2254 (WHP), 2001 WL 984724, at *5 (S.D.N.Y. Aug. 27, 2001) ("mere fact" that plaintiff was fifty-two years old does not raise inference of age discrimination). NYCCOC therefore is entitled to summary judgment as to Aka's age discrimination claim.
Aka's claims that he was discriminated against based on his color, national origin, and race necessarily meet the same fate. Aka has failed to proffer any admissible evidence that suggests that NYCCOC terminated him because of his membership in those protected classes. To support his claim that his termination in 2008 was discriminatory, Aka points to certain prior acts occurring between 2004 and 2006. In particular, he alleges that: (a) a contractor refused to work with him and another African-American carpenter after they were selected through shaping; (b) he was denied work for seventy-four days on discriminatory grounds; (c) he and a carpenter from Barbados were excluded from shaping for unexplained reasons; and (d) the contractors' evaluations of his work were false and therefore evidence NYCCOC's discriminatory bias. (See Pl.'s Opp'n at 11, 18-19, 34-36, 38-41; Dep. 120-21; EEOC Charge at 7-9). Aka's conclusory statements that these incidents amounted to discrimination, however, are insufficient to show that NYCCOC acted out of a discriminatory animus several years later. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 456 (2d Cir. 1999) ("[feelings and perceptions] of being discriminated against [are] not evidence of discrimination") (internal quotation marks omitted; brackets in original); Butler v. N.Y. Health & Racquet Club, 768 F. Supp. 2d 516, 532 (S.D.N.Y. 2011) ("conclusory assertions" that supervisor acted out of racial bias are insufficient to establish inference of discrimination). Importantly, each of the prior acts on which Aka relies occurred between two and four years before he was terminated. Absent any evidence that NYCCOC engaged in a longstanding practice or pattern of discrimination, even if these prior incidents involved unlawful discrimination, this would not suggest that the circumstances surrounding his termination in January 2008 were discriminatory.
Finally, Aka seems to suggest that Richardson de Cuevas's conclusion that EIS had discriminated against him in January 2007 raises an inference that his termination in 2008 also was discriminatory. Aka, however, has offered no admissible evidence to support his assertion that Richardson de Cuevas, in fact, reached that conclusion. Moreover, even if Aka could establish that EIS's action was discriminatory, he has not shown that EIS had any decisionmaking power with respect to his termination. Pursuant to the CBA, contractors such as EIS were not joint employers of the carpenters working for NYCCOC. (Tassone Decl. Ex. A at D007). Rather, the CBA gave NYCCOC the sole right to determine the qualifications of all employees at the Javits Center and to terminate those employees. (Id. at D005-D006). In the absence of any showing that Aka's termination arose out of EIS's complaints, rather than Aka's inability to return to work, Aka has failed to establish a prima facie case that his termination constituted discrimination on the basis of his race, color, or national origin. NYCCOC consequently is entitled to summary judgment on Aka's Title VII claim.
Aka has annexed to his opposition papers an unauthenticated three-page document that appears to be Richardson de Cuevas's handwritten notes regarding Aka's complaints about EIS's refusal to work with him. (See Pl.'s Opp'n Ex. V). It is by no means clear from this exhibit that Richardson de Cuevas reached any conclusions as to the merits of Aka's claim. In any event, it is well-settled that "exhibits submitted in connection with a summary judgment motion must be authenticated and non-hearsay in order to be considered." Young v. Daughters of Jacob Nursing Home, No. 09 Civ. 7475 (CS), 2011 WL 2714208, at *1, n.1 (S.D.N.Y. July 12, 2011). Here, Aka's exhibit is neither.
2. ADA Prima Facie Case
Turning to the ADA, the parties do not dispute that Aka was on a leave of absence at the time of his termination. (See EEOC Charge at 5; Def.'s 56.1 Stmt. ¶ 25). NYCCOC's argument is grounded on its assertion that the record "is bereft of any admissible evidence from which an inference of [disability] discrimination can be made." (Def.'s Mem. at 11). For purposes of its motion, NYCCOC thus does not challenge Aka's showing regarding the first two elements of a prima facie disability discrimination claim. (See id. at 11-14). I therefore have assumed that (a) NYCCOC is subject to the ADA, and (b) Aka was disabled within the meaning of the ADA on the date of his termination. See Capobianco, 422 F.3d at 56. The remaining issues are whether Aka has shown that (a) he could perform the essential functions of his job with or without reasonable accommodation, and (b) the circumstances of his termination raise an inference of discrimination based on his disability. See id.
This second assumption may not be warranted. Aka's physician indicated in January 2008 that Aka had a "total temporary disability." (Pl.'s Opp'n Ex. B) (emphasis added). "Courts within this circuit and the vast majority of courts elsewhere [that] have considered the question have held that temporary disabilities do not trigger the protection of the ADA because individuals with temporary disabilities are not disabled persons within the meaning of the act." Huskins v. Pepsi Cola of Odgensburg Bottlers, Inc., 180 F. Supp. 2d 347, 351 (N.D.N.Y. 2001) (quoting Graaf v. N. Shore Univ. Hosp., 1 F. Supp. 2d 318, 321 (S.D.N.Y. 1998). The Second Circuit, however, has yet to address this issue. See Adams v. Citizens Advice Bureau, 187 F.3d 315, 316 (2d Cir. 1999) ("The question is open in this circuit and we intimate no opinion on it.") (per curiam); see also Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198 (2002) ("impairment's impact must . . . be permanent or long term").
Aka also suggests that he is disabled due to an injury in 2000. (See EEOC Charge at 7 (noting that Aka's ADA claim was based, in part, on his "medical disability" in connection with "an earlier accident in 2000 wherein he hurt his shoulder, knee, ribs, and elbow")). Aka has failed to provide any evidence to support an alleged disability dating to 2000. Moreover, it appears that Aka performed his work responsibilities without any accommodation throughout his tenure at NYCCOC. Aka therefore cannot show that he is disabled based on this earlier alleged disability.
"In general, a leave of absence is a reasonable accommodation." Starr v. Time Warner, Inc., No. 07 Civ. 5871 (DC), 2007 WL 4144627, at * 4 (S.D.N.Y. Nov. 21, 2007). "The ADA, however, 'does not require an employer to grant an employee an indefinite leave of absence.'" Id. (quoting Stamey v. NYP Holdings, Inc., 358 F. Supp. 2d 317, 324 (S.D.N.Y.2005)). As Judge Conner noted in Powers v. Polygram Holding, Inc., 40 F. Supp. 2d 195, 200-01 (S.D.N.Y. 1999), courts have thus far often concluded, as a matter of law, that a request for leave is unreasonable when it exceeds one year, although it does not appear that "any exact number is the 'red line' that demarcates the reasonable from the unreasonable."
In this case, NYCCOC advised Aka that it expected him to return to work by January 15, 2008, which was slightly more than one year after he went on sick leave. (See Tassone Decl. Ex. M). Aka, however, neither returned to work nor furnished NYCCOC with a certification that he was fit to do so. Instead, because he had yet to obtain approval for an MRI from his insurance carrier, Aka took the position that it was too early to announce his ability to return to work. (See Pl.'s Opp'n Ex. B).
As Aka's counsel's letter to Hiler forthrightly explained, the accommodation that Aka sought was that Aka "remain as a Javits employee until he can obtain medical clearance and return to work." (Pl.'s Opp'n Ex. B). Nonetheless, an employer is "not require[d] . . . to maintain an employee's position while [he] unilaterally takes an indefinite leave of absence." See Vazquez v, Southside United Hous. Dev., No. 06 Civ. 5997 (NGG) (LB), 2009 WL 2596490, at *11 (E.D.N.Y. Aug. 21, 2009) (citing Parker v. Columbia Pictures Indus., 204 F.3d 326, 338 (2d Cir. 2000)). Accordingly, because Aka was unable to perform the essential functions of his job and had not sought a "reasonable accommodation" which would permit him to do so, he has failed to establish the third required element of his ADA claim.
More importantly, even if Aka's request to continue his open-ended leave of absence were deemed reasonable, Aka has failed to adduce any evidence that NYCCOC terminated him because of his disability. In particular, Aka has not shown that NYCCOC treated disabled employees less favorably than able-bodied employees in response to requests for extended leave. Aka also has not shown that NYCCOC's decision to terminate his employment was based on anything other than Aka's inability to come to work. Aka therefore has not established a prima facie ADA claim.
3. NYCCOC's Legitimate, Nondiscriminatory Reason
Even if Aka had established a prima facie claim under any of the anti-discrimination statutes upon which he relies, NYCCOC has proffered a legitimate, nondiscriminatory reason for his termination, which is that it needed to "maintain[] a steady, reliable and adequate workforce." (See Tassone Decl. Exs. M, N). By the time NYCCOC terminated Aka, he had taken a leave of absence for over a year as a result of his on-the-job injury, and had not complied with NYCCOC's request that he provide a certification of his fitness to return to work. Both an employee's failure to provide such a certification and an employer's need to maintain a staff that is capable of working have been recognized as legitimate, nondiscriminatory reasons for an adverse employment action. Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 447 (2d Cir. 1999) (plaintiff's termination proper because she failed to provide documentation for her leave of absence pursuant to employer's demand), abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Beachum v. AWISCO N.Y., ___ F. Supp. 2d ___, 2011 WL 1045082, at *8 (S.D.N.Y. Mar. 16, 2011) ("An employee's failure to provide medical clearance to return to work is a legitimate, non-discriminatory reason for an adverse job action."); Jackanin v. Mt. Sinai Hosp., No. 98 Civ. 5752 (KTD), 2003 WL 402443, at *4-5 (S.D.N.Y. Feb. 20, 2003) (granting summary judgment where plaintiff failed to show that the "official reason" for his termination — his failure to return to work from an extended medical leave — was pretextual).
To rebut NYCCOC's legitimate, nondiscriminatory reason for its decision to terminate him, Aka must show that the proffered reason was false and that discrimination based on his age, national origin, race, color, or disability was the "real reason" for his termination. See Beachum, 2011 WL 1045082, at *9 (citing St. Mary's Honor Ctr., 509 U.S. at 515). Here, however, there is no evidence even remotely suggesting that NYCCOC's proffered reason for terminating Aka's employment was false.
In sum, Aka has failed to adduce sufficient evidence to support his claim that NYCCOC unlawfully terminated his employment based on his age, race, color, national origin, or disability. NYCCOC's motion for summary judgment is therefore granted with respect to Aka's Title VII, ADEA, and ADA discrimination claims.
C. Retaliation
Aka's final claim is that his termination constituted unlawful retaliation. To prevail on this claim, Aka first must establish that he engaged in a protected activity prior to his termination. Aka does not clearly identify the events that he contends were protected activities. Rather, he has interspersed throughout his papers and testimony references to several events that he apparently considers protected activities. These include: (1) Aka's participation in Cokely, a race and national origin discrimination class-action lawsuit, in which Aka received $12,500 as his share of NYCCOC's settlement with certain persons it employed between the mid-1990s and 2004 (EEOC Charge at 7); (2) Aka's complaint in 2004 to NYCCOC that Manny Stone Decorators refused to work with him and another African-American carpenter (Pl.'s Opp'n at 11); (3) his complaint in 2004 to the Union and NYCCOC that Tassone failed to assign him work for seventy-four days, under circumstances that he believed constituted harassment and discrimination (id. at 34-36); (4) his complaints in 2006 to NYCCOC concerning the exclusion of his and another carpenter's names from the shaping box (id. at 38-41); (5) his letter to Richardson de Cuevas, dated January 23, 2007, regarding EIS's refusal to work with him earlier that month (see Brady Decl. Ex. 5); and (6) his oral complaints to Richardson de Cuevas in August 2007 about the EIS incident (see Dep. 142-46).
Aka's participation in the prior class-action discrimination suit against NYCCOC clearly constituted protected activity. Assuming, without deciding, that each of his complaints in 2004 and 2006 to NYCCOC also constituted protected activity, Aka still has failed to establish any causal link between any of these activities and his termination. Indeed, each of these prior activities is too remote in time from his termination to be considered causally related simply because it occurred. See Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 616 (S.D.N.Y. 2008) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)) (to infer a causal connection based on timing alone, the protected activity and adverse employment action must be "very close" in time); Lynk v. Henderson, No. 98 Civ. 2086 (MGC), 2000 WL 178859, at *4 (S.D.N.Y. Feb. 15, 2000) (unreasonable to infer that retaliation occurred when three years elapsed between protected activity and adverse employment action). Absent any additional evidence of NYCCOC's allegedly retaliatory motive, Aka therefore has failed to establish a prima facie case of retaliation arising out of anything occurring before 2007.
Aka's contention that he was terminated based on his complaints about EIS in 2007 requires closer examination. In late January 2007, Aka wrote to Richardson de Cuevas about the EIS incident. (See Brady Decl. Ex. 5). In that letter, Aka noted that he did not understand why EIS had refused to work with him, observing further that the rejection made him feel "emotionally hurt." (Id.). Aka's letter, however, did not suggest that EIS had rejected him for any discriminatory reason, nor did Aka use the word "discrimination" or make reference to any anti-discrimination statutes. (See id.). Aka's submission of the letter therefore was not a protected activity because he neither opposed unlawful discrimination nor participated in a proceeding arising out of those statutes as a consequence of sending the letter. See 42 U.S.C. § 2000e-3(a) (protecting employees who oppose any unlawful employment practice or participate "in any manner in an investigation, proceeding, or hearing under" Title VII).
The fact that Aka sent his letter to NYCCOC's equal employment opportunity compliance manager does not make his letter an informal charge of discrimination since it is completely devoid of any language that would have alerted Richardson de Cuevas that Aka believed EIS's refusal to work with him was discriminatory. --------
Later, in August 2007, Aka made an oral complaint to Richardson de Cuevas about the EIS incident. Aka concedes that he did not allege at his meeting with Richardson de Cuevas that EIS's action was discriminatory, but maintains that she nevertheless concluded, based on her own investigation, that discrimination had occurred. (Dep. 144-46). Assuming that Aka's discussion with Richardson de Cuevas constituted protected activity, Aka at best has shown a degree of temporal proximity between his complaint and his subsequent termination. This proximity is sufficient to establish a rebuttable presumption of retaliation at the first stage of the McDonnell Douglas analysis. El Sayed, 627 F.3d at 932-33. As noted previously, however, NYCCOC has proffered a legitimate, nondiscriminatory reason for Aka's termination. The burden therefore shifts to Aka to show that NYCCOC's alleged nondiscriminatory reason for terminating Aka is pretextual. In that regard, the mere fact that only five months elapsed between Aka's oral complaint and his termination is insufficient for Aka to meet his burden. See Simpson, 166 F. App'x at 502; see also Beachum, 2011 WL 1045082, at *11 ("mere temporal proximity . . . [is] insufficient to support a claim of retaliation at the summary judgment stage, at least where the defendant proffers a legitimate reason for the plaintiff's discharge with evidentiary support therefor") (internal quotation marks omitted). Because Aka has not proffered any additional evidence showing that NYCCOC's proffered reason for his termination is pretextual, his retaliation claim fails as a matter of law.
NYCCOC's motion for summary judgment with respect to Aka's retaliation claims pursuant to Title VII, the ADEA, and the ADA therefore must be granted.
V. Conclusion
For the reasons set forth above, NYCCOC's motion for summary judgment, (ECF No. 25), is granted. The Clerk of the Court is therefore requested to close this case.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED. Dated: New York, New York
September 30, 2011
/s/_________
FRANK MAAS
United States Magistrate Judge Copies to: Charles K. Aka
P.O. Box 261
Bronx, New York 10468 Raymond T. Mak, Esq.
Epstein, Becker & Green, PC
250 Park Avenue
New York, New York 10177