Opinion
99 Civ. 10314 (LAP)
August 19, 2003
MEMORANDUM AND ORDER
Plaintiff pro se Chi Ho Lin ("plaintiff" or "Lin") brings this Third Amended Complaint (the "Complaint") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), against defendants New York City Administration for Children's Services ("ACS") and New York City Human Resources Administration ("HRA") (collectively, the "defendants"), alleging that defendants suspended him without pay, failed to promote him, demoted him, and terminated his employment on the basis of his race (Asian) and national origin (Chinese) and in retaliation for filing charges of employment discrimination with the New York City Commission on Human Rights ("CCHR") and the United States Equal Employment Opportunity Commission ("EEOC"). Defendants now move for summary judgment dismissing all claims in the Complaint citing, inter alia, plaintiff's long history of sustained disciplinary charges, including insubordination, failure to perform the duties of his position, engaging in non-work-related activity during work hours and making a false statement concerning his duties. This case is an example of those noted some years ago by Judge Glasser where
disgruntled employees, who have been legitimately discharged because they were incompetent, insubordinate, or dishonest, [have been emboldened] to file suits alleging that they have been the victim of discrimination. The motives prompting those baseless filings may be inferred to be harassment or intimidation with a view towards being rehired. Whatever the motives, the frequency with which such cases are filed unduly burdens the federal courts and subjects innocent employers to incredible expense. . . .Edwards v. Interboro Inst., 840 F. Supp. 222, 231 (E.D.N.Y. 1994); see generally Walter Olson, The Excuse Factory: How Employment Law Is Paralyzing the American Workplace (Free Press 1997). Because plaintiff has not proffered any evidence from which a jury could find that defendants' well-documented actions were pretextual, defendants' motion is granted.
BACKGROUND
The facts pertinent to the instant motion are as follows. ACS was established in 1996 as an agency of the City of New York; prior to January 10, 1996, the functions of ACS were performed by HRA. (Defendants' Local Rule 56.1
Statement of Undisputed Facts, hereafter, "Defs' 56.1," at ¶ 1; Plaintiff's Local Rule 56.1 Statement of Undisputed Facts, hereafter, "Pl's 56.1," at ¶ 1). Plaintiff was appointed by HRA as a civil service Caseworker on July 5, 1983. (Pl's 56.1 at ¶ 2).
On or about October 18, 1988, plaintiff was passed over for a promotion to the position of Supervisor Level I. (Id. at ¶ 3). On December 30, 1988, plaintiff dually-filed a charge of discrimination (the "1988 EEOC charge") with the CCHR and the EEOC arising out of the failure to promote him. (Id. at ¶ 6; Declaration of Edward Shin in Support of Defendants' Motion for Summary Judgment, hereafter "Shin Decl.," at Ex. O). In May 1989, plaintiff was promoted from Caseworker to Supervisor Level I at HRA. (Pl's 56.1 at ¶ 9). On December 17, 1990, plaintiff attended a conference with two HRA representatives at which he was informed that he would be "earmarked" to perform only caseworker functions if he failed to perform his duties as a clearance unit supervisor; on December 19, 1990, plaintiff was earmarked to perform only caseworker duties. (Declaration of Chi Ho Lin in Opposition to Defendants' Motion for Summary Judgment, hereafter "Lin Decl.," at Exs. H, I). Subsequently, effective January 29, 1991, plaintiff was restored to Supervisor I duties. (Ex. J to the Lin Decl.). According to plaintiff, on March 4, 1991, he was assigned to perform a clerical task. (Pl's 56.1 at ¶ 16.) Then, on September 10, 1991, plaintiff had a Step III grievance hearing in which he complained of being assigned the clerical duties. (Id. at ¶ 17). However, by October 10, 1991, plaintiff was no longer being assigned clerical work, thus rendering the grievance resolved. (Id. at ¶ 20; Ex. S to the Lin Decl.). In the interim, plaintiff was charged with specifications for "conduct inimical to the proper conduct of the Agency's operation." (Ex. Q to the Lin Decl.). These charges resulted in the imposition of a fine of two weeks' pay. (Ex. R to the Lin Decl.).
On November 13, 1991, plaintiff amended his 1988 EEOC charge, alleging that ACS retaliated against him for filing a charge of employment discrimination with the CCHR and EEOC. (Ex. P to the Shin Decl.). Specifically, plaintiff alleged that he was retaliated against by being assigned to perform clerical work on March 4, 1991; being subject to disciplinary charges on September 27, 1991; and receiving a fine of two weeks' pay on October 18, 1991. (Defs' 56.1 at ¶ 69).
In a memorandum dated December 6, 1991, Anthony Lanza, director at the HRA, informed plaintiff that he was requesting that disciplinary charges be levied against plaintiff "[a]s a result of [plaintiff's] continued disregard to follow supervision." (Ex. U to the Lin Decl.). On or about March 31, 1992, plaintiff was served the charges and specifications against him, and on April 17, 1992, defendants recommended another penalty against plaintiff, this time in the form of a twenty-day suspension, which was then reduced to a fine of two days' salary and ultimately, as a result of a settlement, reduced to a reprimand followed by a one-year probationary period as of July 6, 1992. (Pl's 56.1 at ¶¶ 22, 23; Ex. EE to the Lin Decl. at ¶ 4; Ex. DD to the Lin Decl.).
In November 1992, Robert Little, Executive Deputy Commissioner of HRA, wrote to plaintiff in response to a series of complaints lodged by plaintiff with regard to a number of incidents involving plaintiff and other co-workers. (Ex. BB to the Lin Decl.). In that letter, Little informed plaintiff that supervisors had reviewed the issues about which plaintiff complained and "[i]n their judgment [plaintiff's] actions and recommendations . . . were not accepted." (Id.). Furthermore, Little told plaintiff that "[f]urther correspondence on this issue will result in a review of your appropriateness to continue in a supervisory role. There is much unit work to be done." (Id.).
On January 11, 1993, plaintiff filed a second amendment to the 1988 EEOC charge, alleging further acts of retaliation by ACS. (Ex. Q to the Shin Decl.). Specifically, plaintiff alleged that he was retaliated against by being brought up on the disciplinary charges that resulted in a loss of two days' salary; that he had difficulty acquiring toner for a photocopying machine on June 15, 1992; and that he became involved in arguments with ACS staff members between June and August of 1992. (Defs' 56.1 at ¶ 70). On June 9, 1998, the EEOC issued a right-to-sue letter concerning plaintiff's 1988 EEOC charge (and its subsequent amendments). The right-to-sue letter indicates that the EEOC "adopted the findings of the state or local fair employment agency that investigated the charge" and indicates that the letter was mailed on June 9, 1998. (Ex. R to the Shin Decl.).
1. Plaintiff's Suspension
On April 17, 1996, while plaintiff was employed by HRA as a Supervisor Level I, HRA filed a disciplinary charge against plaintiff alleging that plaintiff "engaged in misconduct and conduct unbecoming an employee of the Human Resources Administration in violation of Agency Executive Order #618." (Ex. C to the Shin Decl.). The charge included three specifications: (I) that, on or about December 5, 1995, plaintiff's immediate supervisor, Susan Wrynn, assigned work to an employee named Lamont Findley but that plaintiff removed the work from Findley's desk and stated he was giving it to another employee named Ms. Betancourt; (II) that, on or about November 9, 1995, Wrynn instructed plaintiff to assign work to an employee named Ms. Jackson but that plaintiff ignored that instruction and instead assigned the work to an employee named Ms. Hayden; and (III) that, in November 1995, plaintiff told Ronald Calabrese, "you are no good. You, incompetent. You should be demoted or fired, you harass me." (Id.).
Following a disciplinary hearing at the Office of Administrative Trials and Hearings ("OATH") before Administrative Law Judge ("ALJ") Dierdra L. Tompkins, ALJ Tompkins issued a report and recommendation in which she sustained Specifications I and II and dismissed Specification III. (Defs' 56.1 at ¶ 16). ALJ Tompkins then recommended a penalty of suspension without pay for twenty days and cautioned plaintiff that "any future refusal to take direction could result in his demotion." (Id. at ¶¶ 17-18). Nicholas Scoppetta, then — Commissioner of ACS, reviewed ALJ Tompkins' report and concurred with her findings; accordingly, he suspended plaintiff without pay for twenty days. (Id. at ¶¶ 19-20). The suspension was affirmed by the New York City Civil Service Commission ("CSC") on April 10, 2000. (Id. at ¶¶ 21-22).
On May 22, 1998, plaintiff filed a second charge with the EEOC (the "1998 EEOC charge"). (Ex. QQ to the Lin Decl.). In the 1998 EEOC charge, plaintiff alleged that he was suspended without pay on the basis of his national origin. (Id.). On April 19, 1999, plaintiff filed an amendment to the 1998 EEOC charge. (Ex. YY to the Lin Decl.). The amendment alleged that an informal conference was held on July 23, 1998, concerning a set of disciplinary charges and that the charges were "malicious" and "harassment" and were retaliatory as well. (Id.). On July 6, 1999, the EEOC issued a right-to-sue letter concerning the 2001 EEOC charge. (Ex. TTTT to the Lin Decl.).
Plaintiff also purported to amend the 1988 EEOC charge. However, a right-to-sue letter had already been issued by that time. Thus, the 1988 EEOC charge had already been dismissed as of April 19, 1999.
2. Plaintiff's Denied Promotion
In 1999, a new civil service title, Child Welfare Specialist Supervisor ("CWSS I"), among other titles, was established for ACS employees. (Declaration of Cynthia Covington, hereafter "Covington Decl.," at ¶ 6). ACS employees then serving in the title of Supervisor I were permitted to apply for the CWSS I title, which offered a salary increase. (Id.). Employees who were not appointed to the new title were generally redeployed to HRA unless disciplinary charges were pending against them. (Id.). In 1999, plaintiff — who was a Supervisor I at the time — applied for the position of CWSS I. (Id. at ¶ 7). By letter dated April 15, 1999, Commissioner Scoppetta informed plaintiff that he would not be appointed to the position of CWSS I. (Ex. A to the Shin Decl.). On July 1, 1999, Commissioner Scoppetta informed plaintiff that, having reviewed the decision rejecting plaintiff's application for the position, he concluded that the original decision would stand. (Ex. B to the Shin Decl.). Because plaintiff had disciplinary charges pending against him as of July 1, 1999 (specifically, the charges, discussed infra at section 3, that were filed on June 22, 1998 and ultimately led to plaintiff's demotion), plaintiff was kept at ACS rather than being redeployed to HRA. (Covington Decl. at ¶ 9).
3. Plaintiff's Demotion
On June 22, 1998, ACS filed disciplinary charges against plaintiff for misconduct including insubordination, failure to supervise his subordinates, failure to perform the duties of his position, engaging in non-work activity during work hours, and leaving work early without authorization. (Defs' 56.1 at ¶ 23). Following an OATH hearing before ALJ Faye Lewis, ALJ Lewis issued a report and recommendation in which she sustained all of the charges and specifications in their entirety, except for one specification, which was sustained in part. (Ex. H to the Shin Decl.). ALJ Lewis recommended that plaintiff be demoted from Supervisor I to Caseworker and cautioned plaintiff that he "should also be warned that any further refusal to take direction will almost certainly result in his termination." (Id. at 21).
On October 19, 2000, Commissioner Scoppetta, having reviewed ALJ Lewis' report, demoted plaintiff from Supervisor I to Caseworker. (Defs' 56.1 at ¶¶ 40-41). The demotion was affirmed on June 6, 2001, following an Article 78 proceeding. (Ex. K to the Shin Decl.).
In addition to the Article 78 proceeding, plaintiff filed a third charge with the EEOC (the "2001 EEOC charge") on January 18, 2001. (Ex. WWW to the Lin Decl.). In the 2001 EEOC charge, plaintiff alleged that, on July 1, 1999, he was notified that he was rejected for a higher-paying position within the new title series at ACS. (Defs' 56.1 at ¶ 81). Plaintiff also alleged that he was demoted from Supervisor I to Caseworker on October 19, 2000. (Id. at ¶ 83). These employment actions, according to plaintiff's 2001 EEOC charge, were a result of discrimination "because of my race (Asian) and national origin and in retaliation for having filed previous charges." (Ex. WWW to the Lin Decl.). On March 15, 2001, the EEOC issued a right-to-sue letter concerning the 2001 EEOC charge. (Defs' 56.1 at ¶ 85).
4. Plaintiff's Termination
On February 28, 2001, ACS again filed disciplinary charges against plaintiff including insubordination, engaging in non-work-related activity during work hours, failing to perform the duties of his position, making a false statement concerning his duties, conducting himself in a manner prejudicial to good order and discipline, engaging in conduct detrimental to ACS, and engaging in conduct which undermined the effectiveness of the performance of his duties. (Defs' 56.1 at ¶ 46; Ex. L to the Shin Decl.). Following an OATH hearing before ALJ John B. Spooner, ALJ Spooner issued a report and recommendation on November 9, 2001, in which he sustained all of the charges and specifications against plaintiff. (Ex. M to the Shin Decl.). ALJ Spooner, noting plaintiff's considerable prior disciplinary history, recommended that "the time has come for his employment to be terminated." (Id. at 13). On November 23, 2001, Commissioner Scoppetta concurred in ALJ Spooner's findings and conclusions and terminated plaintiff's employment with ACS as of that date. (Defs' 56.1 at ¶¶ 64-65).
On July 2, 2002, plaintiff filed a fourth charge with the EEOC (the "2002 EEOC charge"). (Ex. EEEEE to the Lin Decl.). In the 2002 EEOC charge, plaintiff alleged that defendants violated Title VII because plaintiff was terminated from his employment with ACS on the basis of his race, national origin, and "in retaliation for having filed previous charges." (Id. at ¶ 12). On July 12, 2002, the EEOC issued a right-to-sue letter concerning the 2002 EEOC charge. (Ex. FFFFF to the Lin Decl.).
5. The Instant Action
On October 6, 1999, plaintiff filed an original Complaint. (See docket entry no. 1). On April 19, 2001, plaintiff filed a First Amended Complaint. (See docket entry no. 16). Then, on August 23, 2001, plaintiff filed a Second Amended Complaint. (See docket entry no. 21). Lastly, on or about December 14, 2001, plaintiff filed a Third Amended Complaint, which is the subject of the instant motion. (See Ex. XXXX to the Lin Decl.).
After the completion of discovery, defendants filed a motion for summary judgment, which is now before this Court.
DISCUSSION
I. Summary Judgment Standard
Under Rule 56, summary judgment shall be rendered if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.Proc. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the litigation if application of the relevant substantive law requires their determination. Anderson, 477 U.S. at 248.
The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact."Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The substantive law determines the facts which are material to the outcome of a particular litigation. See Anderson, 477 U.S. at 250; Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).
Because plaintiff is proceeding pro se, I must consider the pleadings under a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972); accord Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ("[W]e read [the pro se party's] supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest."); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (referring to the "special solicitude" afforded pro se litigants when confronted with motions for summary judgment); Hanlin v. Mitchelson, 794 F.2d 834, 838-39 (2d Cir. 1986) (citing Haines to support the principle that pro se pleadings are given a liberal construction).
Nevertheless, proceeding pro se does not otherwise relieve plaintiff from the usual requirements of summary judgment. See Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (holding that a "pro se party's `bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment" (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991))); Kadosh v. TRW Inc., No. 91 Civ. 5080, 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994) ("The work product of pro se litigants should be generously and liberally construed, but [the pro se's] failure to allege either specific facts or particular laws that have been violated, renders his attempt to oppose defendant's motion ineffectual.").
II. Title VII
Title VII provides, in pertinent part:
It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or 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).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court set forth a burden shifting framework under which Title VII cases are analyzed. Id. at 802-05. As the Supreme Court declared in Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), under the McDonnell Douglas framework the ultimate burden of persuasion "remains at all times with the plaintiff." Id. at 253. However, the allocation of burdens of production and order of presentation of proof shifts as follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." 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.Burdine, 450 U.S. at 252-53 (quoting McDonnell Douglas, 411 U.S. at 802-04 (internal citations omitted)).
The initial burden of establishing a prima facie case of discrimination under Title VII is "de minimis." See Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998); see also Minus v. West, 99 Civ. 7229, 2003 U.S. Dist. LEXIS 9277, at *8 (E.D.N.Y. May 30, 2003). Once the plaintiff has established a prima facie case, the burden shifts to the defendants to offer a non-discriminatory justification for their actions. As the Court of Appeals has noted, "[a]ny legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case." Fisher v. Vassar Coll., 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc), abrogated on other grounds, Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000); see also Bailey v. Colgate-Palmolive Co., 99 Civ. 3228, 2003 U.S. Dist. LEXIS 8175, at *43-44 (S.D.N.Y. May 14, 2003). At that point, the presumption of discrimination disappears, and plaintiff must prove "that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) (quoting Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253)). "To defeat summary judgment within the McDonnell Douglas framework, moreover, `the plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the "motivating" factors.'" Holtz v. Rockefeller Co., 258 F.3d 62, 78-79 (2d Cir. 2001) (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)).
As with claims of discrimination, claims of retaliation under Title VII are scrutinized under the same burden-shifting analysis, with plaintiff retaining the ultimate burden of persuasion. See, e.g., Jenkins v. Board of Educ., 2003 U.S. App. LEXIS 8063, at *6 (2d Cir. Apr. 28, 2003).
A. Plaintiff's Suspension
Plaintiff claims that his suspension in 1997 was both discriminatory and in retaliation for complaints he filed with the New York City Commission on Human Rights.
To establish a prima facie case of discrimination on this claim, plaintiff must demonstrate that "(1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action took place under circumstances that give rise to an inference of unlawful discrimination."Dorrilus v. St. Rose's Home, 234 F. Supp.2d 326, 332 (S.D.N.Y. 2002) (citing Stern v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir. 1997).
In order to establish a prima facie case of retaliation, "a plaintiff must demonstrate, inter alia, his participation in a protected activity and `a causal connection between the protected activity and the adverse employment action.'" Sotolongo v. New York City Transit Auth., 2000 U.S. App. LEXIS 14161, at *7-8 (2d Cir. June 15, 2000) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000)).
Assuming, for the purposes of this motion alone, that plaintiff has established a prima facie case, the burden then shifts to defendants to put forth a non-discriminatory reason for plaintiff's suspension. Here, defendants have done just that. The Declaration of Ronald Calabrese ("Calabrese Decl.") lays out, in detail, plaintiff's actions on November 9, 1995 and December 5, 1995. (Calabrese Decl. at ¶¶ 7-16). According to Calabrese's sworn declaration, plaintiff twice refused to perform tasks that were essential to his job and blatantly disregarded directives given to him by his supervisors. (Id.). The matter was then referred to the ACS employment law unit for disciplinary action and led to disciplinary charges being brought against plaintiff. (Id. at ¶ 17). According to defendants, it was plaintiff's actions, not any discriminatory or retaliatory animus on the part of defendants, that were the reason for the suspension that resulted.
Because plaintiff cannot demonstrate that defendants' reasons for the adverse job actions taken against plaintiff were pretextual, the issue of whether plaintiff has presented a prima facie case on any of his claims need not be decided here. However, were the issue to be decided, I would likely find that plaintiff has not made out a prima facie case on any of his claims, except possibly for the failure to promote claim. Nowhere in plaintiff's submissions, other than in plaintiff's complaint (where discrimination and retaliation are charged in conclusory fashion), does plaintiff present any evidence that the adverse job actions had anything to do with race or national origin. Indeed, many of the events about which plaintiff complains involved actions taken by See-Yuen Kuet, one of plaintiff's supervisors, who is of both the same race and national origin as plaintiff. (See Declaration of See-Yuen Kuet, hereafter "Kuet Decl.," at ¶ 2).
Defendants' entirely plausible and non-discriminatory, non-retaliatory explanation shifts the burden back to plaintiff to demonstrate that defendants' proffered explanation is merely pretext. See Roge, 257 F.3d at 168. Here, however, plaintiff has presented no evidence, either direct or indirect, from which a rational jury could find that defendants' reasons for suspending plaintiff were anything other than the reasons stated in their papers. Plaintiff's actions were well documented by defendants, and there is no question that plaintiff had a history of disciplinary problems during his tenure. Plaintiff, in turn, has not proffered any evidence to show that his suspension did not result from the aforementioned disciplinary issues and he has not come forth with any evidence indicating that his race or national origin or his prior complaints played any role in plaintiff's 1997 suspension. See Sotolongo, 2000 U.S. App. LEXIS 14161, at *7 (where plaintiff presents no evidence that his supervisors took his age into account when they suspended him, summary judgment is proper for failure to demonstrate pretext).
Instead, plaintiff continues to insist that he was correct to act as he did, despite the fact that such actions were in clear derogation of the directions given to him. (See, e.g., Pl's 56.1 at ¶¶ 32, 33, 39). If anything, plaintiff's repeated insistence that he was right and his supervisors were wrong lends credence to defendants' position because plaintiff's persistence tends to underscore the disciplinary problems that led to his suspension. Regardless of the import of plaintiff's contentions, it is clear that, even considering all of plaintiff's evidence in the light most favorable to plaintiff, the evidence cannot support a finding of pretext on the claims arising out of his suspension. Accordingly, those claims are dismissed.
B. Plaintiff's Failure to Promote Claim
To establish a prima facie case for failure to promote under Title VII, a plaintiff "must allege that: 1) [he] `is a member of a protected class'; 2) [his] job performance was satisfactory; 3) [he] applied for and was denied promotion to a position for which [he] was qualified; and 4) the position `remained open and the employer continued to seek applicants.'" Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000) (granting summary judgment for failure to state a prima facie case for failure to promote) (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998). The burden then shifts to the defendants to articulate a legitimate, non-discriminatory reason for the decision not to promote plaintiff. If defendants satisfy this burden, then the burden of production returns to the plaintiff, who must prove that defendants' reasons are a pretext for promotion discrimination.
Again, assuming arguendo, that plaintiff has presented a prima facie discrimination case for failure to promote him from Supervisor Level I to Child Welfare Specialist Supervisor I ("CWSS I"), summary judgment for defendants is still proper. Defendants have unambiguously set forth, in the Declaration of Cynthia Covington ("Covington Decl."), that "Plaintiff was not accepted for the CWSS I position due to his disciplinary history." (Covington Decl. at ¶ 7). This sworn statement presented by defendants, particularly combined with the overwhelming documentation of plaintiff's disciplinary record, easily satisfies defendants' burden to present a legitimate, non-discriminatory reason for their actions.
However, plaintiff does not present any evidence to rebut the defendants' non-discriminatory justification for not promoting him. Indeed, in plaintiff's twenty-eight page "statement of undisputed facts" and in the hundred-plus exhibits attached thereto, there is no evidence, either direct or indirect, from which a rational jury could infer that defendants' decision not to promote plaintiff was at all motivated by discriminatory animus. It is undisputed that plaintiff was suspended for twenty days without pay in 1998, following a disciplinary hearing before Administrative Law Judge ("ALJ") Dierdra L. Tompkins, in which plaintiff was found guilty of a number of disciplinary specifications. (Ex. E to the Shin Decl.). Notably, plaintiff does not dispute the fact of this suspension or present any evidence that the stated reasons for his not being promoted are untrue, much less pretextual. Instead, plaintiff merely declares the ALJ's findings to be "bias and erroneous." (Pl's 56.1 at ¶ 46). This is insufficient to carry plaintiff's burden of production on the issue of pretext with regard to defendants' decision not to promote him. No rational jury could find, from the evidence presented, that the defendants' well-documented, non-discriminatory reasons for not promoting plaintiff were pretextual, let alone a pretext for discrimination. Accordingly, plaintiff's failure to promote claim is dismissed.
C. Plaintiff's Demotion and Termination
Plaintiff also alleges that his demotion in 2000 and his termination in 2001 were discriminatory and in retaliation for his earlier protected actions.
These allegations suffer from the same deficiency as the suspension claim, viz., the absence of any admissible evidence, other than plaintiff's ipse dixit, that the justifications are false or that the reasons were a pretext for discrimination. Defendants have come forth with evidence, including sworn declarations of See-Yuen Kuet and Cynthia Covington, that plaintiff's demotion and termination were the result of myriad disciplinary problems, (Kuet Decl. at ¶¶ 9-22 (demotion); Covington Decl. at ¶¶ 13-15 (termination)), and not, as plaintiff suggests, on the basis of plaintiff's race or national origin or in retaliation for any past complaints. (Kuet Decl. at ¶ 27; Covington Decl. at ¶ 22). Even the most generous reading of the evidence in the record falls far short of the showing of pretext required for plaintiff to survive a motion for summary judgment. Plaintiff's only "evidence," in the face of substantial evidence that defendants' actions were based on non-discriminatory bases, is in the form of flat denials or accusations such as that the various ALJs' reports were "bias and arbitrary and capricious and erroneous," (Pl's 56.1 at ¶¶ 97, 130), or that ACS acted "unlawfully and maliciously." (Id. at ¶ 98, 131). Such conclusory statements — the legal equivalent of a playground "Is not!" — cannot, alone, form a basis upon which a jury could find pretext. See Williams v. Bank Leumi Trust Co., 96 Civ. 6695, 2000 U.S. Dist. LEXIS 4102, at *15-16 (S.D.N.Y. Mar. 31, 2000) ("the non-movant cannot avoid summary judgment through conclusory allegations or denials, but instead must bring forward some affirmative indication that his version of relevant events is not fanciful" (internal citations omitted)). Therefore, plaintiff's claims arising out of his demotion and subsequent termination are also dismissed.
In recommending that plaintiff be terminated from his position at ACS, Administrative Law Judge Spooner declared,
There is little question that, given respondent's disciplinary record, the time has come for his employment to be terminated. . . . His City service record of 18 years appears, at best, to have been spotty, marred by the last five years of nearly continuous refusals to obey orders. A past suspension and demotion for similar insubordination has had no effect, other than to heighten his resolve and misguided sense of indignation, permitting no doubt that, if his employment with ACS were to be continued, he would persist in his refusal to perform any work [whatsoever].
(Ex. M to the Shin Decl., at 13). From the record, it is evident that the behavior referred to by ALJ Spooner, not some other impermissible reason, was the impetus for the employment actions taken against plaintiff. Accordingly, plaintiff's cannot prevail at trial.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (docket entry no. 48) is granted, and plaintiff's Third Amended Complaint is dismissed. The Clerk of the Court shall mark this action closed and all pending motions denied as moot.SO ORDERED.