Opinion
CV-03-194 (FB)(LB).
April 6, 2004
NATHAN DUKES, Pro Se, Bronx, NY, for the Plaintiff.
CINDY E. MOLLOY, ESQ., Tratner and Molloy, New York, NY, for the Defendant.
MEMORANDUM AND ORDER
Pro se plaintiff Nathan Dukes ("Dukes") brings employment discrimination claims pursuant to Title VII and the Americans with Disabilities Act ("ADA") against his former employer, The Salvation Army ("Salvation Army"), alleging that he was not promoted, and ultimately terminated, because of his race, religion, and disability. Dukes also alleges that he was retaliated against in violation of Title VII. Defendant moves for summary judgment. For the reasons set forth below, defendant's motion is granted.
The Court notes that Dukes was provided a Local Rule 56.2 statement, explaining the summary judgment standard and the consequences of a grant of summary judgment; Dukes responded with his own affidavits.
I.
The following are the undisputed facts: Dukes was hired to serve as the Social Services Director at one of the Salvation Army's Veterans' Residence Facilities ("Facility") in March 2002. On June 14, 2002, the Program Director — Dukes' supervisor — resigned and the position became vacant. Dukes, who is black, alleges that he was not given an equal opportunity to apply for this position because he was not "white and Jewish." Amended Compl. at 1.
On July 6, 2002, Dukes was hospitalized for a collapsed lung and did not return to work until July 29, 2002, approximately four weeks later. See Deposition of Nathan Dukes ("Dukes Deposition") at 351-55. Despite that Dukes had not yet accrued sick time, he was paid during his three week absence; moreover, the Salvation Army held his position open and allowed him to return to work. Id. at 325. In the meantime, Roy Jerome ("Jerome"), another Salvation Army employee, who is white but not Jewish, was hired as the Program Director. Jerome was hired only after another Salvation Army employee, who was Hispanic, declined the position.
Dukes has refused to sign his deposition. On August 5, 2003, Magistrate Judge Bloom ordered Dukes to sign it and return it to defendant's counsel. Thereafter, Dukes moved to have the deposition stricken because an intern working with counsel for defendant was allowed to sit in on the deposition; Magistrate Judge Bloom denied his motion on September 16, 2003. Dukes has never objected to the content of his deposition testimony.
When Dukes returned to work after his leave, he refused to acknowledge Jerome as the Program Director; refused to follow Jerome's directives, and repeatedly used abrasive language when addressing Jerome. For example, when asked by Richard Schwartz ("Schwartz"), the Salvation Army's Director of Mental Health, to help familiarize Jerome with the facility and its operations, Dukes replied "hell no." Id. at 42. Thereafter, Dukes refused to attend a staff meeting because Jerome was present. See id. at 300. When Jerome asked Dukes to provide him with work-related information, Dukes became angry and told Jerome to "put the request in writing." Id. at 291.
On August 2, 2002, a resident at the facility experienced a psychotic episode, painting his face with camouflage, displaying a knife and threatening to kill. Rather than remain at the facility to deal with the incident, Dukes admitted in his deposition testimony that he left for the day while the incident was unfolding — before the police or the Emergency Medical Service arrived. See Dukes Deposition at 280-81. After the incident, Dukes refused to speak to Jerome about why he had left the facility.
Dukes was terminated on August 7, 2002, while still in his probationary period, because of his insubordination and because he had left "the premises during a resident's psychotic episode." Declaration of Richard B. Schwartz in Support of Defendant's Motion for Summary Judgment at ¶ 12. Rather than contest his alleged insubordination, his improper conduct during the August 2, 2002 incident, or his misrepresentation of his qualifications, Dukes avers that "Richard Schwartz is a racist," and that he did not have the authority to terminate his employment. Answer to Defendant[`]s Statements Regarding Summary Judgment, dated December 24, 2003 ("December 24, 2003 Letter") at 2. Dukes states that he has "evidence and witnesses that can . . . prove that he was discriminated against and harassed," but does not provide any information about those witnesses or what they would testify about. Finally, after his termination, Jerome hired a black woman to replace Dukes.
In a letter to the Court, sent approximately one month after his opposition to summary judgment was due, Dukes states that "[t]he tapes will tell the truth, they will prove that Richard Schwartz is a racist." December 24, 2003 Letter at 2. Despite having ample time to do so, Dukes never submitted any tapes to the Court, nor to the defendant.
II.
Summary judgment is appropriate when there is no genuine issue of material fact to be tried and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party has carried its burden to demonstrate the absence of a genuine issue of material fact, see Celotex Corp., 477 U.S. at 323, the opposing party "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986) (quoting Fed.R.Civ.P. 56(e)) (other citations omitted). Furthermore, the submissions of a pro se plaintiff must be read liberally and interpreted "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, parties, even pro se parties, may not rely on conclusory allegations, see, e.g. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (requiring "non-conclusory allegations" from pro se plaintiff facing summary judgment motion), even in discrimination cases. See Cameron v. Community Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir. 2003) ("[p]urely conclusory allegations of discrimination, absent any concrete particulars, are insufficient" to establish a genuine issue of fact).
III.
A. Title VII Race Discrimination ClaimDukes contends that the Salvation Army failed to promote him to the position of Program Director and ultimately terminated him because he was not white. Dukes' claim is analyzed under the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972). To establish a claim for rase discrimination under Title VII, a plaintiff must show that: "(1) he belonged to a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). Once a prima facie case is established, "the burden shifts to the defendant, which is required to offer a legitimate, non-discriminatory rationale for its actions." Id. Once the defendant makes this showing, "to defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Id.
Even assuming arguendo that Dukes could establish a prima facie case of race discrimnation, the Salvation Army has come forward with a legitimate nondiscriminatory explanation for both its failure to promote Dukes and his termination. With regard to the promotion, Dukes had been employed only for a few months when the position became vacant. The position was first offered to two other Salvation Army employees, one of whom was Hispanic. Moreover, the position needed to be filled immediately and Dukes was on his unexpected leave.
With regard to his termination, the evidence clearly establishes that Dukes was terminated because of his insubordination and the complete abdication of his responsibilities as Social Services Director. Dukes has not presented any evidence indicating that the Salvation Army's proffered explanation was a pretext for discrimination. See Heyman v. Queens Village Committee for Mental Health, 198 F.3d 68, 78 (2d Cir. 1999). See also Collins, 305 F.3d at 119. Moreover, the individual hired to replace Dukes was black. Thus, no rational finder of fact could infer that defendant's actions were based in any way on racial discrimination.
B. Title VII Religion Claim
Dukes contends that he was not promoted because he was not Jewish. "[R]eligious discrimination claims are [also] analyzed under the burden shifting framework of McDonnel-Douglass." Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003). Dukes can not establish a prima facie case because Jerome, the man who received the job, was not Jewish. Again, even assuming that Dukes could establish a prima facie case, the Salvation Army has come forward with a legitimate nondiscriminatory explanation for failure to promote Dukes and he has not presented any evidence of pretext, short of conclusory allegations that Schwartz preferred Jewish employees.
C. Title VII Retaliation Claim
Dukes has presented no evidence indicating that he did anything prior to his termination that would be protected by Title VII (such as filing an EEOC charge). See Terry, 336 F.3d at 141 (to establish a prima facie case for retaliation, an employee must show he, inter alia, "participated in protected activity"). Accordingly, his retaliation claim must fail.
D. ADA Claim
In analyzing discriminatory discharge claims under the ADA, the Court must apply the same McDonnell-Douglas burden-shifting analysis. See Heyman, 198 F.3d at 72 (applying this analysis to ADA claims). To state a prima facie claim for discrimination under the ADA, a plaintiff must establish: "(1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability." Id.
Even assuming arguendo that Dukes has satisfied the first three elements, he fails to provide any "credible evidence" that he was terminated because of his disability, rather than his disciplinary history. See Grillo v. New York City Transit Authority, 291 F.3d 231, 234 (2d Cir. 2002) (summary judgment appropriate where plaintiff fails to come forward with some credible evidence that employer was motivated by some discriminatory intent). Once again, even if Dukes could establish a prima facie case for disability discrimination, the Salvation Army has come forward with a legitimate nondiscriminatory explanation for his termination. Dukes has not presented any evidence indicating that the proffered explanation was pretextual