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rejecting plaintiff's Section 1981 claim of hostile work environment because, “[w]ith the exception of a single hearsay remark, made outside his presence, Greaves fails to point to any discriminatory insult or abuse”
Summary of this case from Alex v. Gen. Elec. Co.Opinion
03 Civ. 7424 (SAS).
March 16, 2005
Philip Akakwam, Esq., Brooklyn, New York, for Plaintiff.
Rory J. McEvoy, Esq., Edwards Angell, L.L.P., New York, New York, for Defendant.
OPINION AND ORDER
I. INTRODUCTION
Franz Greaves is suing his former employer, St. Luke's/Roosevelt Hospital Center ("the Hospital") for race and national origin discrimination in violation of 42 U.S.C. § 1981 ("section 1981"), retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and for common law negligent hiring and supervision. Jurisdiction is based on the presence of a federal question, pursuant to 28 U.S.C. § 1331. The Hospital now moves for summary judgment.
Greaves has abandoned his claims for race and national origin discrimination under Title VII, and his claims under the United States and New York Constitutions. See Joint Letter to the Court dated November 22, 2004.
II. FACTS
Greaves is a black male of Guyanese national origin. In 1997, the Hospital hired Greaves as a temporary employee. Greaves worked for the Hospital's Real Estate Department, filling in for vacationing porters and doormen in the ten buildings the Hospital maintains to house its doctors and nurses. On August 10, 1998, the Hospital hired Greaves as a regular full-time employee. At that time, Greaves became a member of the Service Employees International Union, Local 32BJ, AFL-CIO ("the Union"). From 1998 to 2001, Greaves continued to "float" from building to building, working primarily as a doorman but also as a porter or handyman when needed.
See Plaintiff's Rule 56.1 Statement of Material Facts ("Pl. 56.1") ¶ 1.
See id. ¶¶ 1,2. See also Defendant's Rule 56.1 Statement of Material Facts ("Def. 56.1") ¶¶ 1, 2.
See Pl. 56.1 ¶ 2.
See Def. 56.1 ¶ 5.
Id. ¶¶ 4, 6.
On May 22, 2001, Greaves was assigned permanently to a porter's position at 1090 Amsterdam Avenue ("1090"). Greaves was supervised at 1090 by the building's superintendent, who reported to Gary Migliaccio, the Hospital's Associate Director for Real Estate. During this time, Greaves alleges that he was "never issued with any work uniforms while newly-hired non-black employees were readily given uniforms." Greaves requested at least four transfers to new positions: a porter's position at 515 West 59th Street ("515"), a "relief" position (a combination of porter's and doorman's duties) at 1090, and handyman's positions at 515 and 501 West 113th Street ("501"). All of these requests were denied. Greaves also alleges that Migliaccio treated him in a demeaning manner, and once "literally chased [Greaves] out of his office when [Greaves] had gone to complain about not receiving his pay checks." Greaves does not allege that Migliaccio or anyone else made any race-related comments to him. Greaves claims that he complained to his supervisors that he felt he was being discriminated against on account of his race.
See Pl. 56.1 ¶ 3.
See Def. 56.1 ¶ 8.
Pl. 56.1 ¶ 8.
See id. ¶ 6. See also Transcript of Deposition of Frank Greaves ("Greaves Tr.") at 41-48, 157-62; Def. 56.1 ¶¶ 58-59.
Pl. 56.1 ¶ 10.
Greaves does allege, however, that, at some point in 2000 or 2001, he was told by one of his supervisors, Ali Feroze, that Feroze was told by the Hospital's Vice President for Real Estate, Rosita Hules, that Greaves was "too dark to work as a doorman." Id. ¶ 7. See also Greaves Tr. at 61-62. Because this statement is inadmissible hearsay, it may not be considered on a motion for summary judgment. Federal Rule of Evidence 801(d)(2), excepting "statement[s] by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" from the definition of hearsay, is not applicable. Although Feroze was Greaves' supervisor, Greaves has not shown that Feroze was speaking on a matter within the scope of his agency. "Statements regarding employment matters are within the scope of the declarant's employment if the declarant was `an advisor or other significant participant in the decision-making process that is the subject matter of the statement.'" Evans v. Port Auth., 192 F.Supp. 2d 247 (S.D.N.Y. 2002) (quoting United States v. Rioux, 97 F.3d 648, 661 (2d Cir. 1996)). There has been no showing that Feroze was in any way involved in any relevant decision-making process.
See Greaves Tr. at 102-03, 213-15.
It is undisputed that from 1998 to mid-2000, Greaves was underpaid due to an error in the calculation of his rate of pay. Greaves was not aware that he was being underpaid for roughly "two years and three months." Once Greaves became aware of the error and brought it to the attention of the Hospital, the error was corrected within the month and he received his back pay.
Greaves testified that the "rules of the Union" provide that a vacation relief employee is paid 60% of a full salary, while a permanent employee is paid 80% of a full salary for the first 30 months of permanent employment, and 100% subsequently. Id. at 108. After Greaves became a permanent employee in 1998, he continued to be paid 60% of his salary until he alerted the Hospital to the error. See id. at 109.
Id. at 109.
See Def. 56.1 ¶ 73; Greaves Tr. 107-11.
In the Spring of 2002, the Hospital implemented hospital-wide layoffs. A number of positions in the Hospital's Real Estate Department were identified for elimination. To determine which individuals would be laid off, the Real Estate Department prepared seniority lists for each building at which a position was to be eliminated. At 1090, two porters, Greaves and Fahmy Kassem, were tied for seniority, having both become regular full-time employees at 1090 on the same date, May 22, 2001. The Hospital claims that it resolved the tie between Greaves and Kassem by looking at the last digit of the employees' social security numbers. On April 15, 2002, Greaves was informed that he would be terminated, effective May 15, 2002. Five other Real Estate Department employees were also terminated as part of the reduction in force. One of these employees was reinstated on July 15, 2002.
See Def. 56.1 ¶ 19; Pl. 56.1 ¶ 13.
See Def. 56.1 ¶ 22, Pl. 56.1 ¶ 13.
See Def. 56.1 ¶ 22; Pl. 56.1 ¶ 14.
See Def. 56.1 ¶ 23; Pl. 56.1 ¶¶ 20-22. Greaves argues that, under the collective bargaining agreement, he was entitled to credit for the period in which he was a temporary employee, and so he had more seniority than Kassem. See Pl. 56.1 ¶ 21; but see Affidavit of Michael Badowski, Esq., Attorney for the Realty Advisory Board (RAB) ("Badowski Aff."), ¶ 5 (explaining the calculation of seniority under the collective bargaining agreement between the RAB and the Union). The proper interpretation of the collective bargaining agreement is not relevant to the disposition of the instant motion.
Def. 56.1 ¶¶ 25-26; Pl. 56.1 ¶ 22.
Def. 56.1 ¶ 27.
See Affidavit of Jonathan Hyman, Labor Analyst for The Hospital Department of Human Resources ("Hyman Aff.") ¶¶ 2-5, Exs. A-E (Human Resource database reports).
See id. ¶ 10, Ex. E.
In May 2002, the Union filed a grievance on Greaves' behalf, challenging the decision to lay him off. The grievance was sent to arbitration and a hearing was held on November 18, 2002. In the meantime, in June 2002, Migliaccio sent Greaves a letter informing him that a night shift position was available. Greaves denies receiving this letter, but recalls being informed about the opening. However, Greaves declined the position. Greaves claims that he was unable to accept the position because he suffers from diabetes, which prevents him from working at night. On July 16, 2002, Greaves filed a charge against the Hospital with the EEOC, alleging that he had been laid off because of his color and national origin. In December 2002, the EEOC concluded that Greaves had "failed to provide sufficient evidence to support [his] allegation" and issued Greaves a right-to-sue letter.
See Def. 56.1 ¶ 34; Greaves Tr. at 122-23, 166.
See Def. 56.1 ¶ 35; Greaves Tr. at 167-68.
See Def. 56.1 ¶ 28.
See Greaves Tr. at 142-45.
See Def. 56.1 ¶¶ 28-30; Greaves Tr. at 139, 142-45. See also Declaration of Philip Akakwam, counsel for plaintiff, Ex. J (doctor's note recommending that Greaves should not work night shifts because of his diabetes).
See Def. 56.1 ¶ 31.
Id. ¶¶ 32-33.
At the arbitration hearing in November, the Union told the Hospital that, based on information received from Greaves, Greaves had more seniority than Kassem. The Hospital agreed to reinstate Greaves to his position as a porter at 1090, effective November 25, 2002, and to lay Kassem off. This agreement was memorialized in a Consent Award, dated November 18, 2002. Greaves returned to work, and Kassem in turn filed a grievance, claiming to have seniority over Greaves. The Union informed the Hospital that, contrary to its earlier representation, Kassem had seniority over Greaves. In April, 2003, the Union and the Hospital entered into a new agreement rescinding the November 2002 Consent Award, and providing that Kassem would be reinstated to the porter position at 1090 and that Greaves would be transferred to a doorman's position, "on a rotating shift to be determined by management" at 353 East 17th Street ("353").
See id. ¶ 37; Greaves Tr. at 135.
See Def. 56.1 ¶¶ 37-42; Badowski Aff. ¶ 11, Ex. 2 (Nov. 18, 2002 Consent Award).
See Pl. 56.1 ¶ 23.
See Def. 56.1 ¶ 43.
Badowski Aff. Ex. 3 (stipulation of agreement).
The new agreement also provided that if Greaves declined the position at 353, or failed to execute the agreement by April 22, his employment would be terminated. Greaves did not sign the agreement by April 22, and was terminated. Greaves claims that he refused to accept the position at 353 because it required working at night.
See id.
See Def. 56.1 ¶ 50; Pl. 56.1 ¶ 25.
See Pl. 56.1 ¶ 25.
On April 23, 2003, Greaves discussed the matter with Dennis Haggerty, the Hospital's Director of Labor Relations, and, separately, with representatives of the Union. On April 24, the Hospital and the Union revised the agreement to extend the deadline for Greaves to accept the position at 353 until May 2, 2003. Greaves denies seeing this revised agreement. He did not sign it, and the offer expired. This suit followed.
See Def. 56.1 ¶ 52; Greaves Tr. at 53-54, 172.
See Def. 56.1 ¶ 53; Badowski Aff. Ex. 4 (amended stipulation of agreement).
See Pl. 56.1 ¶ 46.
III. LEGAL STANDARD
A. Summary Judgment Standard
Summary judgment is appropriate if the evidence of record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party." "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'"
Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, a court may rely only on admissible evidence. See Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004).
Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).
Id. (quoting Anderson, 477 U.S. at 248).
The movant has the burden of demonstrating that no genuine issue of material fact exists. In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts," and it must "come forward with `specific facts showing that there is a genuine issue for trial.'" In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. However, "[w]hile all factual ambiguities must be resolved in favor of the nonmoving party, the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation." "The `mere existence of a scintilla of evidence supporting the non-movant's case is also insufficient to defeat summary judgment."
See Powell v. Nat'l Bd. of Medical Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004).
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Powell, 364 F.3d at 84 (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).
See Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004).
Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quotation omitted).
Niagara Mohawk Power Corp. v. Jones Chem., Inc. 315 F.3d 171 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).
"`[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation.'" Courts within "the Second Circuit have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination." Indeed, "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases."
Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 466 (2d Cir. 2001) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).
Scaria v. Rubin, No. 94 Civ. 3333, 1996 WL 389250, at *5 (S.D.N.Y. July 11, 1996), aff'd, 117 F.3d 652 (2d Cir. 1997).
Abdu-Brisson, 239 F.3d at 466.
However, greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer's intent is genuinely at issue and circumstantial evidence may reveal an inference of discrimination. This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law." But even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." "`[M]ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment."
See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999).
Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) (internal quotation marks and citation omitted, brackets in original).
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003) (quoting Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996) (brackets in original)).
B. Greaves' Race Discrimination Claims
To establish a claim under section 1981, a plaintiff must show: (1) that he is a member of a racial minority; (2) that the defendant intended to discriminate on the basis of race; and (3) that discrimination concerning one or more of the activities enumerated in the statute occurred. The statutory activities include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." This includes contracts of employment.
See Brown v. City of Oneonta, 221 F.3d 329, 340 (2d Cir. 1999).
See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 68 (2d Cir. 2000).
In employment discrimination and retaliation cases, courts apply the three-step burden-shifting analysis set forth in McDonnell Douglas Corporation v. Green and Texas Department of Community Affairs v. Burdine. First, the plaintiff must establish, by a preponderance of the evidence, a prima facie case of discrimination or retaliation. To establish a prima facie case of employment discrimination, a plaintiff must show: (1) membership in a protected class, (2) qualification for the position and/or satisfactory job performance, (3) an adverse employment action, and (4) that the adverse employment action was taken under circumstances giving rise to an inference of unlawful discrimination.
411 U.S. 792 (1973).
450 U.S. 248 (1981). While McDonnell Douglas and Burdine involved claims brought under Title VII, courts have applied the same framework to discrimination and retaliation claims brought under 42 U.S.C. § 1981. See Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989).
See McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 252-53.
Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001).
Examples of adverse employment actions are "discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand." However, lesser actions may also qualify as adverse. "Because there are no bright-line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of `adverse.'" In order for the action to be "`materially adverse,' a change in working conditions must be `more disruptive than a mere inconvenience or an alteration of job responsibilities.'" A "`material adverse change' is one that `has an attendant negative result, a deprivation of a position or an opportunity.'" "[N]ot everything that makes an employee unhappy is an actionable adverse action."
Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999).
See id.
Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997).
Id. (quoting Crady v. Liberty Nat'l Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)).
Campbell v. Grayline Air Shuttle, Inc., 930 F. Supp. 794, 802 (E.D.N.Y. 1996) (quoting Medwid v. Baker, 752 F. Supp. 125, 136-37 (S.D.N.Y. 1990)).
Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002).
A plaintiff may establish the "inference of discriminatory intent necessary to complete the prima facie case" in a number of ways, including, but not limited to:
the employer's continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff's qualifications to fill that position; or the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.Second, if the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to articulate some "legitimate, nondiscriminatory reason" for the adverse employment action taken. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Abdu-Brisson, 239 F.3d at 468.
See McDonnell Douglas, 411 U.S. at 802.
See id. at 804; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 509, 515-16 (1993). "`[T]o 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.'" Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (quoting Stern v. Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 312 (2d Cir. 1997)).
"Although intermediate evidentiary burdens shift back and forth under this framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" The Supreme Court has held that summary judgment on behalf of a defendant is appropriate when: (1) "the plaintiff created only a weak issue of fact as to whether the employer's [legitimate, nondiscriminatory reason] was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred;" or (2) "the record conclusively revealed some other, nondiscriminatory reason for the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253).
Id. at 148. Accord James v. New York Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000) (emphasizing that, under Reeves, even where a plaintiff makes a showing of pretext, summary judgment is appropriate where the evidence is insufficient to permit a reasonable trier of fact to make a finding of discrimination).
C. Greaves' Retaliation Claim
To establish a prima facie case of retaliation, an employee must show: (1) participation in a protected activity known to the defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action. The burden-shifting framework outlined above applies to retaliation claims. "A finding of unlawful retaliation is not dependent on the merits of the underlying discrimination complaint."
See Terry, 336 F.3d at 141.
See id.
Hollander v. American Cyanamid Co., 895 F.2d 80, 86 (2d Cir. 1990).
IV. DISCUSSION
1. Greaves' Race Discrimination Claims
It is undisputed that Greaves, who is black, is a member of a protected class. It is also undisputed that his job performance was satisfactory. He thus meets the first two elements of the prima facie case. However, each of his numerous allegations of discrimination are either deficient with respect to the remaining elements of the prima facie case, or insufficient to rebut the Hospital's proffer of legitimate, non-discriminatory reasons for its decisions.
Greaves also asserts that he was discriminated against on the basis of his Guyanese national origin. It is well-settled, however, that section 1981 does not prohibit discrimination on the basis of national origin, as opposed to "discrimination based on ancestry or ethnic characteristics." Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998). To the extent that Greaves' discrimination claims are based on his national origin, they must be dismissed.
First, Greaves complains that he was denied transfers to various positions prior to the 2002 layoffs. "A transfer is an adverse employment action if it results in a change in responsibilities so significant as to constitute a setback to the plaintiff's career [or] involve[s] a demotion in form or substance [or] cause[s] materially significant disadvantage." Similarly, the Second Circuit has held that to show that the denial of a request for a transfer was an adverse employment action, a plaintiff must establish that the denial caused a "materially significant disadvantage in [his] working conditions." "`[I]f a transfer is truly lateral and involves no significant changes in an employee's conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action.'"
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 (2d Cir. 2000).
Williams, 368 F.3d at 128 (granting summary judgment for employer where plaintiff had not shown that denial of request to transfer to account executive position was a materially significant disadvantage).
Id. (quoting Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532-33 n. 6 (10th Cir. 1998)).
Greaves concedes that two of the positions he sought — the porter's position at 515 and the "relief" position at 1090 — were lateral transfers, not promotions. Greaves provides no evidence, or even an allegation, that these positions involved significantly greater pay, prestige or prospects. The denial of these requests therefore cannot constitute an adverse employment action. Second, Greaves alleges that the Hospital failed to provide Greaves with a uniform. Although undoubtedly displeasing and inconvenient, this does not rise to the level of a materially adverse change in Greaves' terms and conditions of employment. Moreover, even if the failure to provide Greaves with a uniform were an adverse employment action, Greaves fails to show circumstances that give rise to an inference of discrimination. It is undisputed that another black employee, a doorman, was provided with a uniform. Greaves does not show that he was similarly situated to those non-black employees who were issued uniforms. Greaves says only that an employee named "Sergio" and other unnamed "Spanish" employees had uniforms. There is nothing in the record to show that he was similarly situated to "Sergio" or those unnamed employees.
See Greaves Tr. at 40-41.
See Galabya, 202 F.3d at 641 (noting that plaintiff's claim rested on the premise that the transfer from teaching a special education high school class to a mainstream class was to a position that was "materially less prestigious, materially less suited to his skills and expertise, or materially less conducive to career advancement. . . . We cannot adopt this conclusion as self-evident, and no evidence in the record supports it.").
At his deposition, Greaves referred to a third desired position, as a handyman, which Greaves described as a promotion. Greaves does not mention this position in his Rule 56.1 Statement or brief, and therefore has abandoned this claim. In any case, and even assuming that the denial of Greaves' request to transfer to a handyman position was an adverse employment action, Greaves cannot establish a prima facie case of discriminatory failure to promote. Greaves concedes that he does not know who, if anyone, filled the positions; it is therefore impossible to say that the circumstances give rise to an inference of discrimination. Moreover, Greaves concedes that he did not formally apply for the position, but merely expressed an interest to Migliaccio. See Greaves Tr. at 157-58. Although a plaintiff may be excused for failing to apply for a promotion where "the plaintiff indicated to the employer an interest in being promoted to a particular class of positions, but was unaware of specific available positions because the employer never posted them," Mauro v. Southern New Eng. Telecomms., Inc., 208 F.3d 384, 387 (2d Cir. 2000), Greaves does not allege that the positions were never posted. Accordingly, this exception is not applicable. See Milford v. New York City Bd. of Health, No. 02 Civ. 2384, 2005 WL 195561 (E.D.N.Y. Jan. 27, 2005) (dismissing claim of discriminatory failure to promote where plaintiff never formally applied for position, and failed to allege that position was never posted).
See, e.g., Wanamaker, 108 F.3d at 466 (finding that denial of office and telephone was not adverse employment action); Gibbs v. City of New York, No. 02 Civ. 2424, 2005 WL 497796, at *9 (S.D.N.Y. Jan. 21, 2005) (finding that denial of extra 15 minutes of lunch break and permission to eat at desk allegedly given to other employees was not adverse employment action); Nakis v. Potter, No. 01 Civ. 10047, 2004 WL 2903718, at *20 (S.D.N.Y. Dec. 15, 2004) (finding that failure to provide keys to employee bathroom, telephone directories or business cards was not adverse employment action).
See Def. 56.1 ¶ 71; Greaves Tr. at 98. Evidence that another member of plaintiff's protected class received the benefit at issue may negate any inference of discrimination. See Magnan v. Manhattan Eye, Ear Throat Hosp., No. 01 Civ. 6306, 2002 WL 334505, at *3 (S.D.N.Y. Feb. 22, 2002); Powell v. Consolidated Edison Co. of N.Y., Inc., No. 97 Civ. 2439, 2001 WL 262583, at *11 (S.D.N.Y. Mar. 13, 2001).
See McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001) ("where a plaintiff seeks to establish the minimal prima facie case by making reference to the disparate treatment of other employees, those employees must have a situation sufficiently similar to plaintiff's to support at least a minimal inference that the difference of treatment may be attributable to discrimination.").
Greaves Tr. at 96-98, 101.
Third, Greaves was underpaid from 1998 to 2000, due to an error — later corrected — in the calculation of his rate of pay. While this might constitute an adverse employment action, Greaves has failed to adduce any evidence of discrimination either to establish a prima facie case, or to show that the Hospital's explanation that the underpayment was an honest, non-discriminatory error is pretextual. Greaves alleges only that unnamed "Spanish people" were given preferential treatment, being paid at the full 100% rate at the start of their permanent employment, rather than after thirty months. However, he fails to identify any such employee, and refuses to state the basis for this belief. Similarly, Greaves complains that there was a two-month delay in restoring his medical benefits after he was reinstated in November 2002. Greaves alleges that the delay in his paperwork was the result of discrimination, but fails to adduce any evidence of discrimination, other than an unsupported allegation that unnamed Spanish employees' "paperwork [went] through right away." Fourth, Greaves alleges discrimination in connection with his termination in 2002. It is clear that Greaves and Kassem were similarly situated, and Greaves was terminated while Kassem, who is not a member of the protected class, was not. This disparate treatment might support a weak inference of discrimination, sufficient to make out a prima facie case. However, the Hospital has shown that Greaves was terminated as part of a general reduction in force, and that the choice between Kassem and Greaves was made on the neutral ground of social security numbers. Greaves has failed to adduce facts sufficient to show that this explanation is pretextual. Significantly, Greaves was later reinstated in place of Kassem. Of the six Real Estate Department employees who were terminated in the reduction in force, Greaves was one of only two to be reinstated.
Even if admissible, Hules' remark that Greaves was "too dark for the door" would not defeat the Hospital's motion on this claim. It is well-established that "stray remarks . . . without a demonstrated nexus to the complained of personnel actions will not defeat the employer's motion for summary judgment." O'Connor v. Viacom, No. 93 Civ. 2399, 1996 WL 194299, at *13 (S.D.N.Y. Apr. 23, 1996). Accord Danzer v. Norden Sys. Inc., 151 F.3d 50, 56 (2d Cir. 1998). Here, Hules' remarks have no demonstrated nexus to the underpayment. Moreover, the underpayment began in 1998. Although it is not clear from the record when Hules' remarks were made, they were not reported to Greaves until 2000 or 2001, when the error had been or was soon to be corrected.
See Greaves Tr. at 113 ("I have some information and the source of my information I wouldn't disclose. But it's happening.").
Id. at 227.
Again, even if admissible, Hules' remark would not defeat the Hospital's motion. There is no nexus between Hules' remark and the decision to terminate Greaves. Indeed, Hules left the Hospital in March 2002, before the termination decision was made.
Finally, Greaves alleges discrimination in connection with the Hospital's decision, in April 2003, to offer Greaves only "a position involving midnight shifts knowing that [Greaves] is incapable of working a night shift due to his diabetic condition rather than give [Greaves] the positions which he was capable of doing." Greaves points to two other positions which he claims he should have been given: a porter position at 425 West 59th Street ("425"), and another porter position at 515. The record shows that the position at 425 did not open until May 9, 2003, when the previous occupant retired, after Greaves' termination on April 22. As for the position at 515, Greaves testified that he requested the position on April 15 or 16, at which time, the Hospital asserts, the decision-making process that led to the position being offered to another applicant (by letter dated April 23) was well underway.
Greaves' Memorandum of Law in Opposition to the Hospital's Motion for Summary Judgment ("Greaves Mem.") at 5.
Hyman Aff. ¶ 13, Ex. I (database report showing previous occupant's last day of employment as May 9, 2003).
See Greaves Tr. at 57.
See Hyman Aff. ¶ 12, Ex. H (offer letter dated April 23, 2003).
Greaves argues that these positions should have been held open for him, or that other employees should have been reassigned to accommodate him. Greaves fails to show that such accommodations were made for similarly-situated non-black employees, or otherwise show any indicia of discrimination. Greaves thus fails to make out a prima facie case of discrimination. Moreover, the Hospital has offered evidence of a legitimate, non-discriminatory reason for its failure to offer Greaves the positions at 425 and 515; i.e., that the positions were not available at the time Greaves was terminated. Even if Greaves were able to show that the Hospital's reasons for failing to accommodate him were pretextual, Greaves has failed to offer any admissible evidence that the Hospital's reasons, "`even if pretextual, served as pretext for discrimination.'" There is no evidence in the record from which a reasonable trier of fact could find that the Hospital's termination of Greaves, or its failure to make greater efforts to accommodate his need for a position not involving night shifts, were the result of racial discrimination. The Hospital is therefore entitled to summary judgment on Greaves' discrimination claims.
Greaves relies on Haggerty's testimony that the Hospital has a policy or practice of holding positions for employees when it anticipates a layoff. See Greaves Mem. at 6 (citing Transcript of Deposition of Dennis Haggerty at 71). Greaves argues that, in terminating him without providing a suitable alternative position, the Hospital deviated from this policy, thus raising an inference of discrimination. However, this policy was not relevant in May 2003, when no layoff was expected.
Roge v. NYP Holdings, Inc., 257 F.3d 164, 170 (2d Cir. 2001) (quoting Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 98 (2d Cir. 1999) (upholding grant of summary judgment for employer where arguable inconsistencies in the employer's explanations for its decision created an issue of fact as to the truth of the employer's proffered explanation, but there was no evidence of a discriminatory intent)). Accord Slattery, 248 F.3d at 92 (upholding grant of summary judgment for employer where, even assuming that the employer's explanations for its decision were partly pretextual, "the evidence presented by [plaintiff] is not enough to permit a jury to find that the real reason he was fired was his age."); James, 233 F.3d at 157 (upholding grant of summary judgment for employer where plaintiff had made out a prima facie case and offered evidence sufficient to raise an issue of fact as to pretext, but the "evidence was insufficient to permit a reasonable trier of fact to find that age discrimination was the reason for his discharge.").
2. Greaves' Retaliation Claim
Greaves alleges that his April 2003 termination was in retaliation for his filing of an EEOC complaint, and for his numerous complaints of racial discrimination. Greaves filed his EEOC complaint in July 2002. The nine months between Greaves' complaint and his termination is too great a length of time to raise an inference of retaliation. Greaves testified that he made complaints of discrimination to his supervisors, but does not indicate when he made those complaints; nor does he show that those supervisors, with the exception of Migliaccio, were involved in the decision to terminate him. Greaves offers no other evidence of retaliation. It is significant that the Hospital reinstated Greaves in November 2002, after his complaint to the EEOC, and that Greaves' April 2003 termination was initiated not by the Hospital, but by the Union.
See Adeyanju v. St. Luke's/Roosevelt Hosp., No. 96 Civ. 1925, 2000 U.S. Dist. LEXIS 22184, at *64-67 (E.D.N.Y. March 29, 2000) ("where the gap in time is eight months long, plaintiff needs more evidence than mere chronology to establish causation") (collecting cases).
See Greaves Tr. at 102-03, 213-15.
3. Greaves' Hostile Work Environment Claim
In his brief, Greaves appears to assert, for the first time in this litigation, a hostile work environment claim. Greaves has not sought leave to amend his complaint to state such a claim. In any event, the evidence falls far short of establishing a hostile work environment. A hostile work environment exists where "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.'" "A plaintiff alleging a hostile work environment `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 her working environment.'" With the exception of a single hearsay remark, made outside his presence, Greaves fails to point to any discriminatory insult or abuse.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)).
Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2001) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)).
4. Greaves' Negligent Hiring and Supervision Claim
Although all federal claims have been dismissed, and there is no diversity jurisdiction in this case, the Court will consider Greaves' remaining state law claim, in the interests of judicial economy and fairness to the parties, who have expended substantial resources on discovery. See Motorola Credit Corp. v. Uzan, 388 F.3d 39, 47 (2d. Cir. 2004).
Greaves alleges that the Hospital "was negligent in hiring and supervision of its employees in that [the Hospital] failed to fire or otherwise discipline [his] supervisors despite notice of their improper actions," and that "as a direct result of these actions [Greaves] suffered injury," including "loss of income." This claim cannot survive. New York's Worker's Compensation law is the exclusive remedy for claims of negligence against an employer relating to workplace injuries.
Complaint ¶¶ 40-42.
See N.Y. Work. Comp. § 29 (McKinney's 2004). See also Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (upholding district court's grant of summary judgment to defendant employer on plaintiff's claim for negligence in failing to supervise alleged harasser and prevent creation of a hostile work environment; holding that New York's Worker's Compensation law provided plaintiff's exclusive remedy for a negligence claim against employer).
V. CONCLUSION
For the foregoing reasons, the Hospital's motion for summary judgment is granted. The Clerk of the Court is directed to close this motion [#22] and this case.
SO ORDERED.