Opinion
02-CV-1216 (NPM/DRH).
March 1, 2005
LAW OFFICES of MICHAEL H. SUSSMAN, Esq., Goshen, New York.
ROGER W. KINSEY, Assistant Attorney General, HON. ELIOT L. SPITZER, Attorney General for the State of New York, The Capitol Albany, New York.
MEMORANDUM DECISION ORDER
After approximately 23 years of employment with the New York State Department of Civil Service ("the Department"), plaintiff Merton Simpson, an African American, was terminated. Mr. Simpson claims that he was terminated because of his race and in retaliation for filing a Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC") and for commencing another federal lawsuit. The defendants are four individual Department employees and the Department itself.
Plaintiff asserts five separate but related causes of action. The first two are against the Department for discriminatory and retaliatory termination in violation of Title VII of the 1964 Civil Rights Act ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. The other three causes of action are directed solely at the individual defendants and are based upon 42 U.S.C. § 1983. In those causes of action plaintiff alleges that the individual defendants violated his First Amendment rights of free speech and freedom of association and his Fourteenth Amendment right to Equal Protection. During oral argument, plaintiff stated that he was not pursuing a freedom of association claim. Transcript (Dec. 27, 2004) ("Tr.") at 46. Therefore, the court deems the same ( i.e., the fourth cause of action) withdrawn. The Department is moving for summary judgment on a number of grounds. The court heard oral argument on December 27, 2004. Following constitutes the court's decision in this regard.
Background
I. The "Battery Test"
Mr. Simpson began working for the Department in 1978. At the time of his termination, in October 2001, plaintiff held the position of Associate Affirmative Careers Program Specialist in the Department's Division of Diversity Planning and Management ("DPM"). Plaintiff's "duties and responsibilities involved statewide affirmative action issues." Affidavit of John E. Soffey (May 26, 2004), exh. H thereto at 4. During the course of his employment, plaintiff "took an employment test known generally as the Battery Test[.]" Affirmation of Michael H. Sussman (June 30, 2004), exh. 13 thereto at 1. This Test "is either the sole test or a major component for a wide range of supervisory and management titles in New York State government." Id. According to plaintiff, "[h]is test score . . . adversely affected his ability to maintain or advance his grade as a civil service employee." Id.
On September 22, 1997, plaintiff conducted a press conference at which he announced his intention to file an EEOC Charge pertaining to the Battery Test. Defendants' Statement Pursuant to Local Rule 7.1(a)(3) at ¶ 1; and Plaintiff's Reply to Defendants' Rule 7.1(a)(3) Statement at ¶ 1. The basis for that Charge was two-fold. First, plaintiff alleged that the Battery Test had an adverse impact on minorities such as him. Sussman Aff'n, exh. 13 thereto at 1. Second, plaintiff alleged that after he protested the negative impact which the Battery Test had upon minorities, the Department retaliated against him. Id.
That press conference was publicized in the local media. Defendant Wall, the Department's General Counsel at the time, saw the press conference on television and read about it in the newspaper. Affidavit of Daniel E. Wall (May 27, 2004), at 2, ¶¶ 3 and 5. That same day Wall avers that he "was advised by [Law Bureau] staff . . . that they had been made aware that plaintiff had requested data from the Information Resource Management Division ("IRM") of the Department relating to the Batter[y] [Test] which did not appear related to plaintiff's duties and responsibilities." Id. at 2, ¶ 6.
"IRM produces statistical reports and analysis of written tests administered by the Department." Wall Aff. at 2, ¶ 6.
A couple of days later, on September 24, 1997, at Wall's request, Assistant Director Reginald Knox met with defendant Wall, plaintiff Simpson and Jim Bouldin, plaintiff's immediate supervisor. Id., exh. B thereto. According to the memo of that meeting made nearly contemporaneously therewith, "[t]he focus of th[at] meeting was [plaintiff's] access to confidential information in th[e] agency." Id. That memo reflects that during the meeting Mr. Wall "explained" that because of plaintiff's filing an EEOC complaint against the Department "it [wa]s in the agency's best interest to assure the appropriateness of the information that is accessed by [plaintiff] while this matter is pending." Id. Defendant Wall then "directed" plaintiff "to obtain approval from the Director of DPM [Mr. Diggs], the Assistant Director of DPM [Mr. Knox], or [Mr. Wall] prior to requesting information that is not readily available to the public from other divisions." Id. This "directive" has come to be known as the "Simpson Rule."
In a similar vein, on September 29, 1997, DPM Director Diggs issued an interoffice memorandum regarding the "DPM INFORMATION REQUEST POLICY[.]" Sussman Aff'n, exh. 6 thereto. The Diggs memorandum "delineate[d]" a policy requiring that "all staff in need of statistical data or other information from any division with the Department" go through a "chain of command" to obtain same. See id. That policy was to "take effect immediately."Id. This policy has come to be known as the "Diggs Rule."
II. EEOC Complaint
In its March 22, 2000 Determination, the EEOC expressly found that "the Battery Test has a disparate impact of [sic] Blacks and Hispanics." Sussman Aff'n, exh. 13 thereto. It further found that the Department was not able to show that the Battery Test "is job related for the position in question and consistent with business necessity." Id. The EEOC thus found "reasonable cause to believe that [the Department's] Battery Test has an adverse impact on Blacks and Hispanics, has not been validated, and therefore violates Title VII." Id. Additionally the EEOC found that after plaintiff protested the Battery test, the Department retaliated against him by "establish[ing] a new policy that restricted [plaintiff's] co-workers[`] work-related interactions with [plaintiff] and subjected [him] to unprecedented scrutiny while performing his job." Id.
Eventually, on June 26, 2002, the EEOC issued a Right to Sue letter. See Co., exh. B thereto. Thereafter plaintiff timely filed this action.
III. Bouldin v. Diggs
In late December 1998, plaintiff and James Bouldin commenced an action in the Northern District of New York pursuant to 42 U.S.C. § 1983 against their supervisor, Lawrence C. Diggs, Jr., and against Commissioner Sinnott, who is also a defendant in this action. Affirmation of Roger W. Kinsey (May 27, 2004), exh. C thereto. Plaintiffs alleged that Diggs engaged in "retaliatory actions," and "intentionally" violated their rights to freedom of speech and freedom of association. Id. at 6, ¶¶ 33-34. Diggs' alleged retaliation took the form of giving plaintiffs poor performance evaluations because they "refused to contribute to the Republican Club with which Diggs was associated[,]" and because they "commenced public comment concerning the discriminatory nature of [the Battery] [T]est[.]" Id. at 5, ¶ 29. Another aspect of that claimed retaliation was the "promulgati[on] [of] the so-called `Simpson rule' which made it much more difficult for plaintiff Simpson to access data needed to discharge his duties." Id. From plaintiff Simpson's perspective, that Rule "effectively stymied him from performing the duties assigned to him[.]" Id.
On January 22, 2002, the Bouldin action went to trial before United States District Court Judge Hurd. That same day the parties entered into a stipulation on the record dismissing with prejudice that part of the complaint alleging racial discrimination See Kinsey Aff'n, exh. B thereto at 453 and 454. After the second day of trial, opposing counsel "join[ed] plaintiff . . . in seeking to dismiss the remaining claims against Mr. Sinnott with prejudice[.]" Id. at 660 (emphasis added). The court clarified, "as counsel ha[d] discussed," that that dismissal "include[d] events up to and including December 28, 1998[.]" Id. The court concluded, "Mr. Sinnott is dismissed from this case in his entirety and the complaint against him is dismissed." Id.
That dismissal left Diggs, Simpson's and Bouldin's supervisor, as the only remaining defendant. In response to a special verdict form, the jury found that defendant Diggs did not retaliate against plaintiff for exercising his freedom of speech and freedom of association rights. See id. at 1135. Thus, the defendants prevailed in the Bouldin litigation.
IV. Disciplinary Actions
During the Bouldin litigation, and over the course of two years, plaintiff Simpson was the subject of four notices of discipline. The fourth culminated in his termination from the Department.
A. First Notice of Discipline (early 1999)
On January 11, 1999, a Notice of Discipline ("Notice") was issued to plaintiff because he had been "absent from work for five consecutive days without prior approval and had failed to call in to explain his absence." Affidavit of John E. Soffey (May 26, 2004) at 2, ¶ 2. section 75. After a formal written apology from plaintiff, this matter was resolved by the issuance of Letter of Reprimand, which plaintiff accepted and was placed in his personnel folder. Id. at 2, ¶ 5; and exh. A thereto.
As a member of New York's Civil Service, plaintiff's employment status was subject to § 75 of the New York Civil Service Law. That statute prevents the removal or discipline of covered employees without certain procedural protections, including notice and a hearing.
B. Second Notice of Discipline (June 1999)
On June 23, 1999, plaintiff was served with a Notice charging that he engaged in "misconduct" by "intentionally and willfully violat[ing] a direct order of [defendants] [Wall] and . . . Abrams, [by] . . . request[ing] a copy of the Testing Services Division's Examiners' Manual from an employee of th[at] . . . Division while attending a training session." Id., exh. B thereto at 1. After being told by several Division employees that they would not provide the manual to plaintiff, the Notice further charged that he finally "persuade[d] an employee of Staffing Services to release" the manual to him. Id. at 2.
Prior to the release of that manual, plaintiff supposedly sought permission to obtain it from two of his supervisors. See id. They refused on the ground that plaintiff's request was not job-related. See id. The Notice further alleged that plaintiff's request for the Division Manual was in contravention of "clear and direct orders" by his superiors "to obtain approval prior to requesting information from other Divisions that is not readily available to the public." Id. The Notice proposed a five day suspension as the penalty. See id. Plaintiff answered, among other things, that it was "retaliat[ed] against . . . for conduct protected by the First Amendment[.]" Id., exh. C thereto.
Following a two day hearing in April 2000, Hearing Officer Selchick issued his "Findings and Recommendation" ("Report) finding that there were "legitimate reasons" for the Department's issuance of the order requiring prior approval before requesting non-public information from other Divisions. Id., exh. D thereto at 24. He further found that plaintiff did not "establish that retaliation was the sole motivating factor for the order's issuance." Id. (emphasis added).
The Hearing Officer opined that the proposed penalty of a five day suspension without pay was "excessive[.]" Id. Therefore he recommended the issuance of a letter of reprimand and the loss of three days annual leave, which he believed comported with "the Department's obligation to engage in a course of progressive discipline[.]" See id. at 25. Commissioner Sinnott accepted and adopted the Report, but he deviated with respect to the penalty. Because loss of annual leave accruals is not statutorily permitted, and because only one type of penalty is permissible under the relevant statute, Sinnott directed that plaintiff be issued only a formal letter of reprimand. Id., exh. E thereto at 2. Plaintiff did not exercise his appeal rights with respect to this second Notice.
C. Third Notice of Discipline (November 1999)
The third Notice against plaintiff was issued on November 2, 1999. The basis for this Notice was plaintiff's "acts of insubordination, refusal to follow agency time and attendance procedures, refusal to complete work assignments as directed and [plaintiff's] poor and sporadic attendance pattern[.]" Id., exh. F thereto at 3. The proposed penalty was "suspension without pay for 30 work days." Id. As with the second Notice, plaintiff answered and charged the Department with retaliating against him for "conduct protected by the First Amendment[.]" Id., exh. G thereto.
Following an evidentiary hearing and the submission of post-hearing memoranda, on October 16, 2000, Hearing Officer Rubenstein issued a Report wherein he "dismissed the charges relating to absences for 11 out of a possible 20 work days in October 1999 finding that the Department did not present sufficient evidence to establish time and attendance abuse during this period." Soffey Aff. at 6, ¶ 25; and exh. H at 7. Rubenstein did find, however, that the Department had sustained its burden of showing other time and attendance abuses.
Insofar as the retaliation claim was concerned, the Hearing Officer found, as had the Hearing Officer in the second proceeding, that plaintiff's claim of retaliation was unsupported. "[T]here [wa]s no evidence in the record to support such claim other than its bare assertion." Id., exh. H thereto at 11. The Hearing Officer further explained: "The mere fact that Simpson previously filed a[n] . . . EEOC claim does not provide him with a cloak of immunity protecting him against future adverse action. Inference and innuendo cannot serve as a substitute for facts." Id. (footnote omitted).
The Hearing Officer concluded that the time and attendance abuses were "serious acts of misconduct which warrant the imposition of a significant penalty especially in view of the fact that this is Simpson's second disciplinary proceeding involving time and attendance." Id., exh. H thereto at 11. Given plaintiff's "long years of service" to the Department, however, the Hearing Officer stated that a 30 day suspension without pay "would not be appropriate[.]" Id. at 12. Therefore, he recommended a one week suspension without pay. See id.
Commissioner Sinnott adopted that report in its entirety. See id., exh. I thereto. Once again, plaintiff did not exercise his appeal rights. See id. at 8, ¶ 29.
D. Fourth Notice of Discipline (December 2000)
On December 15, 2000 plaintiff was served with another disciplinary notice — his fourth in two years. The allegations primarily concerned his accessing and printing certain Department documents which purportedly contained "confidential and restricted information" such as Social Security numbers pertaining to Department employees. Id., exh. J thereto at 1, ¶ 1. Wall asserted that plaintiff had no "legitimate work-related need to obtain, view or print such information[.]"Id. at 2, ¶ 3. He further alleged that these actions "were in contravention" of the Simpson Rule "and a further order subsequently issued by . . . Assistant Division Director Abrams."See id. at 1, ¶ 2.
The final charge in this Notice pertained to an incident on December 11, 2000. On that day Wall alleged that plaintiff "was questioned by [Department] Legal Staff regarding [his] possession and use of . . . sensitive and confidential information obtained through [his] [Department] computer between May 30, 2000 and November 29, 2000." Id. at 4, ¶ 9. As Wall recounts it, when plaintiff "indicated that [he] had, in fact, obtained such information and still possessed [it], [plaintiff] was directed by [his] immediate supervisor, Frank Abrams, to deliver the documents to [Abrams] within one hour or explain in writing why the material [wa]s unavailable."
Wall continued:
A short time later . . . Abrams saw you at the [Department] photocopy machine making photocopies of the documents you had been directed to deliver to him. Mr. Abrams then gave you an explicit, clear and direct verbal command to cease making photocopies and you refused to do so. You continued to make photocopies of the computer printouts containing sensitive and confidential information despite . . Abrams' repeated commands and orders for you to stop. Id. at 5, ¶ 9. Wall characterized the foregoing as "gross insubordination and misconduct[,] . . . [which] cannot and should not be tolerated further." Id.
Termination was the proposed penalty. See id., at 5. Plaintiff explicitly denied all allegations; but in contrast to the prior disciplinary matters, he did not assert a retaliation defense. See id., exh. K thereto;
Following a two day evidentiary hearing and the submission of post-hearing memoranda, on October 2, 2001, Hearing Officer Rinaldo issued his Report. He found that the Department did not sustain its burden as to two and a half of the nine charges. The Department did however sustain its burden of proving the remaining charges, including that plaintiff impermissibly accessed and printed a document which "clear[ly] . . . contained `confidential and restricted information' because it set forth the social security numbers of [Department] employees[.]" Id., exh. L thereto at 33. The Hearing Officer further found that plaintiff had "no `legitimate work-related need'" for this document. Id. In addition, the Hearing Officer found did not "deny accessing and printing out the documents contained in the Charge." Id. at 35.
The Hearing Officer also sustained the charge that plaintiff had continued to make copies of confidential documents despite Abrams' directive to stop. See id. at 41-43. By continuing to xerox those documents "for his own personal use[,]" the Hearing Officer found that plaintiff "was communicating his refusal to comply with [Abrams'] directive." Id. at 42 (emphasis in original). Further, the Hearing Officer reasoned that plaintiff's "conduct in continuing to make copies and retaining them, . . ., underscore[d] . . . the flagrant nature of [t]his insubordination." Id. at 43 (emphasis in original).
The Hearing Officer rejected plaintiff's "defense" that he was acting on "advice of counsel" when he continued to copy and then retain the documents, even in the face of Abrams' verbal command not to do that. See id. In so doing, the Hearing Officer explained:
There is . . . no `advice of counsel' exception to an employee's duty to respond promptly to directives that are not patently illegal or do not subject the employee to some kind of physical danger. The proposition is actually quite simple: no employer can effectively carry out its mission if clear and lawful directives are disregarded by employees. The workplace is not a tribunal where employees have the freedom to disregard managerial directives on the advice of counsel.Id.
In light of the foregoing, the Hearing Officer concluded that as to this particular charge the Department had "established that [plaintiff's] conduct . . . amounted to `gross insubordination[.]'" Id. In keeping with "the goal of progressive discipline[,]" termination was recommended. Id. at 44. In this regard the Hearing Officer explained that "[t]he Department should not have to assume the risk of [plaintiff's] future misconduct, in that it should not have to assume the risk that [he] will compromise the integrity of confidential information, gather information for apparently his own personal reasons, and flagrantly disregard lawful directives issued to him by his supervisors." Id. at 44-45.
On October 9, 2001 Commissioner Sinnott adopted that report in its entirety. See id., exh. M thereto. The next day he issued a letter terminating plaintiff. See id., exh. N thereto.
Discussion
I. PreclusionA. Res Judicata
Relying upon the doctrines of res judicata and collateral estoppel, the Department had devoted a significant portion of its memoranda to the claimed preclusive effect of Bouldin on the present action. Given what transpired at oral argument, however, there is no need to address the res judicata argument in any depth.
More specifically, during oral argument the Department "concede[d]" that res judicata does not bar plaintiffs claims based upon retaliatory or discriminatory termination. Tr. at 33-34; and 37. The unstated basis for this concession is thatBouldin does not bar plaintiff from litigating claims of retaliatory and discriminatory termination because he could not have litigated such claims therein given that that action was filed in December 1998, "nearly three years before [plaintiff's] termination." Pl. Memo. at 14 (emphasis added). The Department's concession comports with governing law. See Storey v. Cello Holdings, 347 F.3d 370, 383 (2d Cir. 2003) ("Claims arising subsequent to a prior action need not, and often perhaps could not, have been brought in that prior action; accordingly, they are not barred by res judicata regardless of whether they are premised on facts representing a continuance of the same `course of conduct'[.]"); see also Lawlor v. Nat'l Screen Serv. Corp., 349 U.S. 322, 327-28 (1995), ("[W]hile the [prior] judgment precludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not . . . then exist and which could not possibly have been sued upon in the previous case.") Consequently, to the extent the Department is relying upon res judicata as a basis for summary judgment, the court denies same.
B. Collateral Estoppel
Collateral estoppel occurs "if (1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Vargas v. City of New York, 377 F.3d 200, 205-06 (2d Cir. 2004) (internal quotation marks and citations omitted) (emphasis added). Not only must the issue have been actually decided, but "its determination must have been essential to the judgment." Postlewaite v. McGraw-Hill, 333 F.3d 42, 48 (2d Cir. 2003) (citation omitted). "The prior decision of the issue need not have been explicit, however, [i]f by necessary implication it is contained in that which has been explicitly decided." Id. (internal quotation marks and citation omitted). Thus, "[i]f the decision was implicitly necessary, it will be the basis for collateral estoppel." Id. (internal quotation marks and citation omitted).
By the same token, however, the Second Circuit in Postlewaite reversed the district court's finding that collateral estoppel barred plaintiff's post-arbitration lawsuit. In so doing thePostlewaite Court held that the issue was not actually decided because clearly it was not the only possible basis for the arbitrators' decision. Id. at 49-50.
"[T]he party asserting preclusion bears the burden of showing with clarity and certainty what was determined by the prior judgment, and [i]ssue preclusion will apply only if it is quite clear that this requirement has been met." Postlewaite, 333 F.3d at 49 (internal quotation marks and citations omitted). "The opponent of preclusion has the burden of proving the absence of a full and fair opportunity to litigate the issue in the prior proceeding." NAS Electronics, Inc. v. Transtech Electronics PTE LTD., 262 F.Supp.2d 134, 143 (S.D.N.Y. 2003) (citations omitted).
The Department maintains that when Judge Hurd dismissed with prejudice "all claims against defendant . . . Sinnott . . . includ[ing] events up to and including December 28, 1998," that "foreclosed from further litigation" those "incidents surrounding the creation of the so called `Simpson Rule[.]'" St. Reply at 2 (emphasis in original). The Department declares that "[i]t is uncontrovertible that the creation and application of the . . . `Simpson Rule' was litigated fully and fairly and plaintiff lost." Id. at 3 (citations omitted).
Kinsey Aff'n, exh. B thereto at 660.
Plaintiff counters that the Bouldin lawsuit was not about the Simpson Rule, but "focused on a totally different set of transactions: plaintiffs' contention that Diggs, their supervisors, and Sinnott the director of the agency retaliated against them because of their refusal to participate in Digg's illegally operating political club." Pl. Memo. at 16. Plaintiff then broadly asserts that "it was not necessary for the jury to resolve any issue raised in this case and certainly resolution of no issue raised in this case was necessary to support the prior judgment." Id. (citation omitted).
Plaintiff has the better argument here. There is nothing in this record showing that the circumstances surrounding the creation of the Simpson Rule were "essential to the [prior] judgment" in favor of Sinnott and Diggs. Sinnott and Diggs were not even present at the meeting when that Rule supposedly was promulgated. Thus, the Department has fallen far short of its burden of showing "with clarity and certainty what was determined in the prior judgment" see Postelwaite, 333 F.3d at 49, with respect to the Simpson Rule. Thus, in keeping with principle that "collateral estoppel is grounded on concepts of fairness and should not be rigidly or mechanically applied[,]" NAS Electronics, 262 F.Supp.2d at 144 (internal quotation marks and citations omitted), the court denies the Department's motion for summary judgment on collateral estoppel grounds.
II. Title VII A. Individual Capacity
Plaintiff is suing the four Department employees, Sinnott, Wall, Soffey and Abrams, in their individual capacities. In the two causes of action which are expressly based upon Title VII, those defendants are not mentioned. Nonetheless, the Department is moving for summary judgment as to those defendants because the law has been well settled in this Circuit for some time that employees cannot be held individually liable for violations of Title VII. See Tomka v. Seiler, 66 F.3d 1295, 1317 (2d Cir. 1995), abrogated on other grounds, Burlington Inds. v. Ellerth, 524 U.S. 742 (1998). At oral argument plaintiff conceded, Tr. at 44, as he did in his opposition memorandum, that there is no individual liability under Title VII. However, because it is possible to read the complaint as including such claims, the court will grant the Department's motion to the extent it is seeking summary judgment dismissing plaintiff's Title VII claims against the four Department employees in their individual capacities.
See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Memo.") at 13.
B. Official Capacity
The Department did not raise the issue of the viability of plaintiff's Title VII claim against defendant Sinnott in his official capacity. Because it is possible to broadly construe the complaint as asserting such a claim, the court will, nonetheless, address this issue. "[T]he Second Circuit has left open the question whether [Title VII] suits may be maintained against employees in their `official capacity[.]'" Guzman v. Round Hill Country Club, Inc., No. 3:03CV0851, 2003 WL 23212750, at *1 (D. Conn. Jan. 30, 2003) (citing Hafez v. Avis Rent A Car System, Inc., No. 99-9459, 2000 WL 1775508, *2 (2d Cir. Nov. 29, 2000)). However, "most circuits either have rejected such suits outright, on the ground that employees cannot incur personal liability under Title VII, or have treated such suits as an action against the employer." Id. (footnote and citations omitted). This has been the "trend" in the district courts within the Second Circuit as well. See id. at *1, n. 4 (citing McBride v. Routh, 51 F.Supp.2d 153, 156-57 (D.Conn. 1999) (citing cases)).
Judge Kahn's decision in Bottge v. Suburban Propane, 77 F.Supp.2d 310 (N.D.N.Y. 1999), provides one such example. InBottge, Judge Kahn held "that [the Second Circuit's] individual liability bar applies to individual defendants in their official capacities, as well as to situations where the plaintiff seeks prospective injunctive relief against such individuals, under . . . Title VII[.]" Id. at 313. In reaching that conclusion, Judge Kahn soundly reasoned that "[t]he official/personal capacity distinction seems misplaced since it would place this Court in the position of holding someone liable without providing Plaintiff with a remedy at law." Id. Adopting that reasoning and following the Circuit-wide trend on the issue of official capacity Title VII claims, the court grants summary judgment in the Department's favor to the extent plaintiff is seeking to hold defendant Sinnott liable under that statute in his official capacity. Consequently, as plaintiff's employer, the Department is the only remaining defendant with respect to plaintiff's Title VII causes of action. See Bembry v. Darrow, 97 F.Supp.2d 281, 285 (N.D.N.Y. 2000), aff'd without written decision, 7 Fed.Appx. 33 (2d Cir. 2001) (granting summary judgment dismissing Title VII claims against all individual supervisory defendants, thus leaving employer as the sole defendant).
C. Burden-Shifting Framework
"In Title VII employment discrimination and retaliation cases, courts apply the three-step burden-shifting analysis set forth inMcDonnell Douglas Corporation v. Green, 411 U.S. 792 . . . (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1983)." Norris v. New York City Housing Authority, 2004 WL 1087600, at *7 (S.D.N.Y. May 14, 2004) (other citation omitted). The first step in that process is that the plaintiff must make out a prima facie case of discrimination or retaliation. See id. "Generally speaking, a plaintiff's burden of establishing a prima facie case in the context of employment discrimination law is minimal." Collins v. New York City Transit Authority, 305 F.3d 113, 118 (2d Cir. 2002) (internal quotation marks and citation omitted).
Once the plaintiff meets that burden, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Holtz v. Rockefeller Co., Inc., 258 F.3d 62 (2d Cir. 2001). "[T]he burden ultimately shifts back to plaintiff, who must adduce evidence sufficient to raise a fact issue as to whether the employer's reason was merely pretext for retaliation [or discrimination.]" Norris, 2004 WL 1087600, at *7 (internal quotation marks and citation omitted). Thus, in the end the ultimate burden of persuasion lies with the plaintiff to prove that the defendant's reason was pretextual and that the employer's action was discriminatory. See Holtz, 258 F.3d at 81.
1. Discrimination
a. Prima Facie Case
To establish a prima facie case of discrimination, a plaintiff must show: (i) membership in a protected class; (ii) qualifications for the position; (iii) an adverse employment action; and (iv) circumstances surrounding that action giving rise to an inference of discrimination." Collins, 305 F.3d at 118 (quoting Burdine, 450 U.S. at 252-53) (citation omitted). ____
During oral argument the Department readily conceded that plaintiff has satisfied these first three elements. See Tr. at 24-25. The Department agreed that as an African-American, plaintiff is a member of a protected class; see Nelson v. Beechwood Organization, No. 03 Civ. 4441, 2004 WL 2978278, at *5 (S.D.N.Y. Dec. 21, 2004) ("[P]laintiff "is an African-American man, and therefore a member of a protected class."); and because he was terminated, he was subjected to an adverse employment action. See Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (termination of employment "deemed sufficiently disadvantageous to constitute an adverse employment action"). In addition, when questioned by the court, the Department clarified that it was " not contend[ing] that [plaintiff] was not qualified." Tr. at 25. Thus the only remaining issue at this point is whether plaintiff can meet his "minimal" burden of establishing a claim of prima facie discrimination, i.e., "circumstances surrounding th[e] [adverse employment] action giving rise to an inference of discrimination." See Collins, 305 F.3d at 118 (internal quotation marks and citations omitted).
Consistent with its memorandum of law, during oral argument initially the Department took the position that plaintiff has not made out a prima facie pretext claim; he has "simply . . . alleged" same. Tr. at 31. Directly after that the Department retreated though, stating that " perhaps the Court can even opine that [ plaintiff] has met the prima facie pretextual portion." Id. (emphasis added). Given the Department's equivocal stance, however, the court will address the issue of whether plaintiff has met this burden. As just explained, because the Department challenges only plaintiff's ability to establish the fourth element of such a claim (whether an inference of discrimination can be drawn), the court will limit its analysis accordingly.
i. "Inference of Discrimination"
"An inference of discrimination may arise if a plaintiff can show that he was treated differently than similarly situated employees of a different race[.]" Jackson v. Norwalk Board of Education, No. Civ.3:02CV1777, 2004 WL 2472223, at *5 (D.Conn. Sept. 9, 2004) (citing, inter alia, Shumway v. United Parcel Service, 118 F.3d 609, 63 (2d Cir. 1997)) (emphasis added). "To be `similarly situated' for the purposes of Title VII, the individuals with whom plaintiff compares himself must be similarly situated in all material respects." Hogan v. State of Connecticut Judicial Branch, 220 F.Supp.2d 111, 119 (D.Conn. 2002), aff'd without pub'd opinion, 64 Fed. Appx. 256 (2d Cir. 2003) (internal quotation marks and citation omitted). To satisfy this requirement a plaintiff must show that his co-employees were subject to the same . . . discipline standards . . . [and] that similarly situated employees who went undisciplined engaged in comparable conduct." Id. (internal quotation marks and citation omitted).
The all material respects "standard requires a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases are identical." Id. (internal quotation marks and citation omitted). "In other words, the acts of plaintiff and his comparators must be of comparable seriousness." Id. (internal quotation marks and citation omitted). Further, "where a plaintiff seeks to establish a case of discrimination by making reference to the disparate treatment of other employees, those employees must have a situation sufficiently similar to plaintiffs to support at least a minimal inference that the difference of treatment may be attributable to discrimination."Tomasino v. Mount Sinai Medical Center and Hospital, No. 97 Civ. 5252, 2003 WL 1193726, at *14 (S.D.N.Y. March 13, 2003) (internal quotation marks and citation omitted).
In his complaint plaintiff alleges that there were "white [Department] employees" who were "similarly situated" to him in that they "engaged in alleged acts of misconduct similar to or greater than [the] acts alleged to have been committed by [him,] . . . yet [they] [were] not . . . brought up on disciplinary charges, or, if . . . charged," they were not terminated. Co. at ¶ 36. At his deposition plaintiff identified three Department employees whom he believes fall into that category. One such person is Mr. Swiers, a Caucasian employee who wrote several interoffice memoranda critical of management. See Sussman Aff'n, exh. 5 thereto at 135-136; see also exh. 7-10. Plaintiff pointed out that production of certain documents to "DPM management [would be] tantamount to giving a Rolls Royce to a drunk driver." Id. at 135; and exh. 8 thereto. To the best of plaintiff's knowledge, Swiers was never disciplined for this conduct. Id. at 135.
Plaintiff further testified that at a staff meeting another Caucasian employee, Don Hines, was "very critical [of] . . . [Mr.] Diggs' behavior, purportedly indicating that "he [Diggs] should have been hung." Id. at 137. Although plaintiff has not identified any portion of the record which sets forth whether or not Hines was disciplined for this alleged comment, drawing every reasonable inference in plaintiff's favor, and based upon the portion of plaintiff's deposition which is part of the record, it is possible to infer that Hines was not disciplined.
In addition, plaintiff identified Michele Massiano as another Caucasian employee who purportedly is similarly situated to him in terms of alleged misconduct. Plaintiff testified that Ms. Massiano "wrote a couple of emails" wherein she was "very caustic to Abrams[.]" Id. at 137-38. It is not entirely clear from the record whether Ms. Massiano was disciplined for these e-mails. Again however, a reasonable inference can be drawn that she was not. See id. at 134-38.
According to plaintiff, the "significan[ce]" of the evidence just outlined is that "it was . . . routine for other . . . staff members who were white to send rather critical and caustic memos to management[;]" yet to plaintiff's knowledge they were never disciplined for this conduct. See id. at 135. In contrast, plaintiff notes that one of the issues raised during the fourth disciplinary proceeding, which resulted in his termination, was his "tone in terms of questioning the propriety of professionals in our division [DPM] accessing information[.]"Id. Evidently plaintiff is referring to charges seven and eight. The former charge alleged that plaintiff had engaged "in a long series of episodes during the past year in which [he] ha[d] been confrontational and adversarial towards DPM management[,]" consistently question[ing] the authority of [his] managers to establish policy and direction for the Department. Soffey Aff., exh. L thereto at 3, ¶ 7. Charge eight alleged that plaintiff sent an e-mail "criticiz[ing] the leadership and director of the DPM as a whole[.]" Id. at 4, ¶ 8.
Even if these actions are "comparable" to the conduct purportedly engaged in by Swiers, Hines and Massiano, there is a fundamental flaw with plaintiff's disparate treatment argument. Plaintiff conveniently ignores the fact that he was not terminated for engaging in the conducted alleged in those two charges. In fact, the Hearing Officer found that the Department failed to meet its burden of proof as to those charges. Id. at 41. The Hearing Officer further found that neither of those charges "rose to the level of misconduct." Id. Clearly then charges seven and eight did not factor into the Hearing Officer's recommendation to terminate plaintiff. Thus, the foregoing actually shows not that plaintiff was treated differently than purportedly similarly situated individuals, but that he was treated the same. That is, to the extent plaintiff, Swiers, Hines and Massiano can be deemed to have been critical of management, none of them were disciplined for that conduct. Hence, plaintiff's reliance upon purported criticisms of management by Swiers, Hines and Massiano to support his disparate treatment theory is misplaced.
Plaintiff fares no better with his position, which he repeatedly stressed during oral argument, that the Diggs memo was only enforced against him. Assuming this is so, plaintiff has not specifically identified any Caucasian or other non-African American employee who acted in contravention of the Diggs memo, let alone someone who did so but was not disciplined for it. This evidentiary shortcoming is fatal to plaintiff's argument that his termination occurred under circumstances giving rise to an inference of race discrimination. See Vanhorne v. New York City Transit Authority, 273 F.Supp.2d 209, 214 (E.D.N.Y. 2003) (plaintiff failed to show circumstances surrounding his termination gave rise to an inference of racial discrimination where, inter alia, he could not identify the allegedly similarly situated Caucasian employee); Jackson v. Norwalk Board of Education, No. Civ.3:02CV1777, 2004 WL 2472223, at *7 (D.Conn. Sept. 9, 2004) (plaintiff did not meet "minimal" burden of showing an inference of discrimination based on a disparate treatment theory where she made only a "general assertion" of same and did not "offer any specific names of persons similarly situated").
Moreover, the fact remains that violation of the Diggs' memo was not one of the reasons for his termination. That memo is not mentioned in any of the charges which were the subject of the fourth disciplinary hearing culminating in plaintiff's termination. If anything, plaintiff was treated the same as others who supposedly violated the Diggs' memo: he was not disciplined. Thus, in the end, plaintiff is left with nothing more that his "own beliefs and speculations" as to the reasons behind the Department's decision to terminate him. See Satterfield v. United Parcel Service, Inc., No. 00 Civ. 7190, 2003 WL 22251314, at *15 (S.D.N.Y. Sept. 30, 2003) (footnote and citations omitted). This is not enough. "[A] plaintiff's personal conclusory assumptions as to the reasoning behind a disciplinary decision are insufficient to support . . . and inference [of discrimination.]" VanHorne, 273 F.Supp.2d at 214 (citations omitted). In short, "[b]ecause plaintiff submits no evidence to support his claim of disparate treatment[,] [he] fails to demonstrate that the circumstances of his termination give rise to an inference of discrimination." Id.
In arguing that plaintiff cannot meet his burden of showing an inference of discrimination, the Department concentrated on the Second Circuit's decision in Collins, to the exclusion of any other argument. The plaintiff did the same. Thus, it is necessary to discuss Collins in some detail, especially because in the end that case bolsters the finding that plaintiff has not met his burden of establishing this fourth element of a prima facie case.
In Collins a former employee alleged, inter alia, race-based and retaliatory discharge in violation of Title VII and section 1983. Finding that there was insufficient evidence that plaintiff's termination was either discriminatory or retaliatory, the district court granted the employer's motion for summary judgment and the Second Circuit affirmed.
Plaintiff Collins had a history of troubled relationships with his co-workers, culminating in his assaulting another employee. Plaintiff denied ever having touched his co-worker. Nonetheless, based upon this incident plaintiff's employer terminated him.
Prior to his termination, in accordance with the governing collective bargaining agreement, plaintiff Collins filed a grievance and was represented by his union at an arbitration hearing. After a three day hearing the arbitration board issued what the Second Circuit described as "a reasoned fourteen-page opinion, concluding that there was corroboration of [the co-worker's] injuries occurring from an assault when he and [plaintiff] were alone and that [plaintiff] should be discharged for the assault." Collins, 305 F.3d at 119. In assessing whether plaintiff could meet "even th[e] low threshold," i.e., "minimal," of establishing a prima facie case of discrimination or retaliation, the Second Circuit looked to that arbitration decision.
In so doing, the Court noted that plaintiff did "not suggest that the arbitration board was not a fully independent and unbiased decisionmaker[.]" Id. at 118-19. Further the Second Circuit noted, "there [wa]s no claim that the arbitration board "rubber-stamped' the recommendations of [plaintiff's] supervisors." Id. at 119. Thus the Court found that plaintiff's "termination occurred . . . only after a decision, based on substantial evidence, of an undisputedly independent, neutral, and unbiased adjudicator that had the power to prevent the termination." Id. Such a finding, the Second Circuit held, "is highly probative of the absence of discriminatory intent in that termination." Id. (citing inter alia Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 n. 21 (1974)) (emphasis added). Stated somewhat differently, "a decision by an independent tribunal that is not itself subject to a claim of bias will attenuate a plaintiff's proof of the requisite causal link." Id. (emphasis added).
Based upon that reasoning, the Second Circuit held that where an arbitration "decision follows an evidentiary hearing and is based on substantial evidence, the Title VII plaintiff, to survive a motion for summary judgment, must present strong evidence that the decision was wrong as a matter of fact — e.g., new evidence not before the tribunal — or that the impartiality of the proceeding was somehow compromised."Id. (emphasis added). Reasoning that plaintiff Collins did not meet that burden because "the circumstances of his termination . . . d[id] not give rise to or support an inference of discrimination or retaliation[,]" the Second Circuit affirmed the district court's grant of summary judgment in favor of the defendant employer. Id. at 118 (footnote omitted).
Simpson responds that despite the Department's assertion to the contrary, Collins is not dispositive of the present motion because Collins is readily distinguishable. In particular, unlike Collins, Simpson contends that any "indicia of neutrality" in the arbitration is "completely lacking" here because "management solely selected Mr. Rinaldo to hear the case[.]." Pl. Memo. at 18-19 (emphasis added). During oral argument plaintiff explained that he asked for an independent hearing officer "rather than someone from the [S]tate," but in his view this request was "ignored." Tr. at 14.
This is not an accurate characterization of the record. First of all, Mr. Rinaldo was not "solely selected" by the Department. In his deposition plaintiff acknowledged that hearing officers are selected from a "list . . . compiled in conjunction with Civil Service and with various [employee] groups[.]" Kinsey Aff'n, exh. A thereto at 65. This is consistent with former Human Resource Director Soffey's explanation that hearing officers are "selected from a panel . . . agreed to between the State . . . and the Organization of Management Confidential Employees[.]" Soffey Aff. at 4, ¶ 12. Significantly, plaintiff was a member of that Organization. Id. Therefore, at least implicitly plaintiff agreed to Mr. Rinaldo being on the panel of designated hearing officers.
Although it is true, as Simpson alleges, that a Department employee, defendant Sinnott, designated Rinaldo as the hearing officer, see Sinnott Aff. at 3, ¶ 9, such designation was in accordance with section 75 of the Civil Service Law. See id. at 2, ¶ 4. Accordingly, despite plaintiff's suggestion to the contrary, the court fails to see how plaintiff can claim any bias where defendant Sinnott acted in accordance with the statutory authority granted to him.
Second, the record also does not support plaintiff's contention that his request for an independent hearing officer was "ignored." See Tr. at 14. Rather, the record shows that plaintiff simply failed to follow up on that request Nowhere in the Hearing Officer's detailed 45 page Report is there any mention that plaintiff objected to Mr. Rinaldo serving as the hearing officer. Even post-hearing, plaintiff could have raised the issue of alleged bias on the part of the hearing officer, either by pursuing an appeal to the Civil Service Commission or or by bringing an Article 78 proceeding in state court. See Kinsey Aff'n, exh. A thereto at 66-67. He did not. Given this record, the court agrees with the Department that by his "silence" plaintiff acquiesced in having Mr. Rinaldo serve as the hearing officer. Tr. at 24.
Furthermore, the record also supports a finding that the arbitration itself was conducted without bias. Plaintiff was represented by counsel of his own choosing during the two day evidentiary hearing, and he had "the right to present oral and written evidence and to examine and cross-examine witnesses[.]" See Sinott Aff, exh. L thereto at 1. The plaintiff was allowed to and did submit a post-hearing memorandum. Plaintiff does not suggest that any of these rights were impaired.
Moreover, plaintiff does not contend that the hearing officer simply rubberstamped the Department's decision to terminate plaintiff. In any event, such a contention would be unfounded given the Hearing Officer's comprehensive report wherein he carefully examined the factual predicate of each of the nine charges levied against plaintiff. Soffey Aff., exh. L thereto. After so doing, the Officer found that the Department did not meet its burden of proof as to all nine charges. Therefore, the Hearing Officer recommended dismissing two of those charges and modifying two others. For all of these reasons, the court disagrees with plaintiff's contention that Collins is inapplicable because allegedly the hearing officer was biased and the arbitration otherwise lacked neutrality.
Simpson offers two additional reasons which he believes renderCollins inapplicable here. Neither are persuasive. First he contends that there are "significant differences between" an Article 75 arbitration and the present federal court action. According to plaintiff, the most "notabl[e]" difference is that lack of discovery in the Article 75 proceeding which supposedly deprived him of "a full and fair opportunity" to be heard. Pl. Memo. at 19. While that difference, assuming it exists, may well be relevant to the issue of collateral estoppel, it has no bearing on the impact of Collins on the present case. See Roemer v. Board of Education, 290 F.Supp.2d 329, 332 (E.D.N.Y. 2003) (citing Collins, 305 F.3d at 119) ("Plaintiff simply misapprehends the difference between apply collateral estoppel and giving evidentiary weight to the arbitration.") Thus, the claimed procedural differences between the Article 75 arbitration and this action do not support the conclusion thatCollins is inapplicable, as plaintiff suggests.
Plaintiff's second reason as to why Collins does not apply is because purportedly the Hearing Officer did not make any "explicit findings of fact or conclusions of law on [the] issue of . . . discrimination[.]" Pl. Memo. at 20. There is no legal basis for this argument. Under Collins and its progeny, failure to address the discrimination issue in an arbitration does not diminish the impact of that arbitration on a subsequent discrimination action. See Roemer, 290 F.Supp. at 334 (citingBrinson v. New York City Transit Authority, 60 F.Supp.2d 23, 30 (E.D.N.Y. 1999) ("[I]t is immaterial that the arbitrator did not consider [plaintiff's] claim of discrimination and instead focused on the misconduct charges."), aff'd without pub'd opinion, 213 F.3d (2d Cir. 2000); and Robinson v. Getinge/Castle, Inc., No. 02-CV-6049, 2005 WL 272964, at *8 (W.D.N.Y. Feb. 2, 2005) (and cases cited therein) (courts within this Circuit have "repeatedly rejected" the argument that an arbitrator's decision should not be credited simply because the issues of discrimination and retaliation were not before the arbitrator).
In fact, "in Collins the arbitration board's decision was relied on not as expressly dealing with the issues of race discrimination and retaliation, but as providing persuasive findings about the employee's misconduct." Tomasino, 2003 WL 1193726, at *12. That is the import of Hearing Officer Rinaldo's Report in this case. In his carefully reasoned and thorough Report, Rinaldo "provid[ed] persuasive findings about the employee's misconduct." See id. Thus it is simply irrelevant at this point whether or not Rinaldo considered the issue of discrimination.
Examining Rinaldo's Report in light of Collins, the court finds that Rinaldo's arbitration Report, which the Department ultimately adopted, is " highly probative of the absence of discriminatory intent" in plaintiff Simpson's termination. See Collins, 305 F.3d at 119 (citation omitted) (emphasis added). Plaintiff cannot overcome this finding because he has not come forth with any evidence, let along "strong evidence," such as "new evidence not before the [Hearing Officer,]" showing that his termination was wrong as a matter of fact. See id. Nor, as thoroughly discussed above, did he present "strong evidence" that the "impartiality of the arbitration was somehow compromised."See Collins, 305 F.3d at 119. As the court explained inNorris, "[w]hen such an independent decision is not impeachable by reason of factual error or impartiality, it can overcome any inference that a plaintiff's termination was the result of discrimination or retaliation, and therefore prevent the plaintiff from meeting even the low threshold of making out a prima facie case of a Title VII violation." 2004 WL 1087600, at *9. Such is the case here.
Plaintiff's lack of disparate treatment proof, in combination with the Hearing Officer's adverse decision, convinces the court that plaintiff has not shown, as he must, that his termination arose under circumstances giving rise to an inference of race discrimination. Accordingly, plaintiff has not met his "low threshold" burden of establishing a prima facie discrimination claim. At this juncture it would be permissible for the court to grant summary judgment in the Department's favor on this particular cause of action. See Lumhoo v. Home Depot USA, Inc., 229 F.Supp.2d 121, 141 (E.D.N.Y. 2002) (granting summary judgment in employer's favor where plaintiff failed to establish a prima facie case of discriminatory discharge). Nonetheless, the court will continue with the McDonnell Douglas burden-shifting analysis because, as will soon become apparent, even if plaintiff Simpson had met his burden of showing a prima facie discrimination claim, this claim still would not survive the Department's summary judgment motion.
b. "Legitimate, Non-discriminatory Reason" for Discharge
Assuming arguendo a prima facie showing of discriminatory discharge, as mentioned earlier, the burden now shifts to the Department, as the employer, to "articulate some legitimate, nondiscriminatory reason for [plaintiff's termination]."McDonnell Douglas, 411 U.S. at 802. "The defendant is not required to convince the court that the reason it offers is true, but rather `[i]t is sufficient if the defendant's evidence raise[s] a genuine issue of fact as to whether it discriminated against the plaintiff." Reed v. Connecticut, Dept of Transportation, 161 F.Supp.2d 73, 80 (D.Conn. 2001) (quotingBurdine, 450 U.S. at 254).
The Department has met this burden. It terminated plaintiff because he was "guilty of the charges of misconduct and insubordination" identified in Hearing Officer Rinaldo's Report.See Soffey Aff., exh M thereto at 1. Among other things, as the Hearing Officer found and plaintiff acknowledged during, plaintiff accessed certain documents for which he "did not have any legitimate workrelated" need for accessing, see e.g., Soffey Aff., exh. J thereto at 1, ¶ 1, including a document which contained "confidential and restricted information pertaining to all DCS employees." Id. at 2, ¶ 3. The Hearing Officer further found that plaintiff violated a superior's "directive" when he accessed confidential employee information without prior permission and for no legitimate work-related purpose. See id., exh. L thereto at 34-35. According to the Hearing Officer, who had the opportunity to view the credibility of the witnesses, "[t]here [wa]s no reason to believe that [plaintiff's] knowing violation of these directives was anything other than insubordination."Id. at 35.
In addition, the Hearing Officer found that plaintiff refused to comply "with the directive" from Abrams that he cease photocopying documents which plaintiff had been ordered to return to Abrams. Id. at 42. At this juncture the Department's burden "is one of production, not persuasion, and requires only the articulation, but no proof, of such reason." Schallop v. New York State Dept of Law, 20 F.Supp.2d 384, 400 (N.D.N.Y. 1998) (citing Burdine, 450 U.S. at 254-56) (emphasis added). Plainly the Department has met this burden of "articulation."
Evidently the parties assumed that pretext would not be an issue on this motion because they did not bother to address it. This made the court's task on this summary judgment motion unnecessarily arduous.
Because the Department has articulated a legitimate, non-discriminatory reason for terminating plaintiff, "the presumption of discrimination arising with the establishment of the prima facie case [assuming it existed in the first place] drops from the picture." See Weinstock v. Columbia University, 224 F.3d 33, 42 (2d Cir. 2000) (citations omitted). At this point in the analysis, "plaintiff must . . . meet h[is] ultimate burden of proving that he was the victim of intentional discrimination without the benefit of McDouglas's intermediate burdens and presumptions." Holtz, 258 F.3d at 77 (citation omitted). Thus, "the burden shifts to plaintiff to demonstrate by a preponderance of the evidence that defendant's presumptively valid explanation for [his] termination was merely a pretext for discrimination." Ralkin v. New York City Transit Authority, 62 F.Supp.2d 989, 1001 (E.D.N.Y. 1999) (emphasis added).
"In the summary judgment context, this means that the plaintiff must establish a genuine issue of material fact either through direct, statistical, or circumstantial evidence as to whether the employer's reason for discharging h[im] is false and as to whether it is more likely that a discriminatory reason motivated the employer to make the adverse employment decision." Id. (internal quotation marks and citations omitted) (emphasis added). At this point, "the factual inquiry proceeds to a new level of specificity." Burdine, 450 U.S. at 255.
As with most discrimination cases, there is no direct evidence here that the Department's stated reason for terminating plaintiff ("misconduct and insubordination") was false. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994) (internal quotation marks and citations omitted) ("[E]mployers are rarely so cooperative as to include a notation in the personnel file that their actions are motivated by factors expressly forbidden by law. Because an employer who discriminates is unlikely to leave a `smoking gun' attesting to a discriminatory intent, a victim of discrimination is seldom able to prove his claim by direct evidence, and is usually constrained to rely on circumstantial evidence."); Dister v. Continental Group, Inc., 859 F.2d 1108, 1112 (2d Cir. 1988) ("[In] reality . . . direct evidence of discrimination is difficult to find precisely because its practitioners deliberately try to hide it. Employers of a mind to act contrary to law seldom note such a motive in their employee's personnel dossier.") Likewise there is no direct evidence that it is more likely than note that racial animus motivated the Department's termination decision.
Given the lack of direct evidence and because plaintiff is not relying upon statistical evidence, circumstantial evidence is the only other means available to him to prove pretext. Plaintiff has not met his burden in this regard however. He has not come forth with "some evidence," let alone the necessary "sufficient" evidence, to support a finding that the Department's legitimate, nondiscriminatory reasons "were in fact false, and a mere pretext for unlawful discrimination[.]"See Spadola, 242 F.Supp.2d at 295 (internal quotations marks and citations omitted). Plaintiff relies solely upon his "own beliefs and speculations" that he was terminated because of his race. See Satterfield, 2003 WL 2251314, at *15 (footnote and citations omitted). Such evidence, "standing alone, [is] insufficient." See id.
Additionally, "[t]he Second Circuit has made clear that, `[i]f the plaintiff's evidence was barely sufficient to make out a prima facie case, it may not be sufficient to establish discrimination after defendant has proffered a neutral rational[e].'" Ralkin, 62 F.Supp.2d at 1001 (quoting Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)) (other citation omitted). This is precisely the situation here. As previously discussed, plaintiff did not meet the de minimis burden of showing a prima facie case of discrimination. That, coupled with the Department's neutral rationale and the lack of evidence of pretext, mandates the conclusion that the Department is entitled to summary judgment dismissing this Title VII discrimination claim in its entirety. See id. (citation omitted) ("When an employer provides convincing evidence explaining its conduct, and the plaintiff's case rests on conclusory allegations of discrimination, the court may properly conclude that there is no genuine issue of material fact and grant summary judgment to the employer."); see also Patterson v. County of Oneida, New York, 375 F.3d 206, 221 (2d Cir. 2004) ("[I]f the plaintiff has failed to show that there is evidence that would permit a rational factfinder to infer that the employer's proffered rationale is pretext, summary judgment dismissing the claim is appropriate[.]")
2. Retaliation
The retaliation allegations in plaintiff's complaint are remarkably similar to his discrimination allegations. According to plaintiff:
There [we]re other employees of the Department . . . who were similarly situated to [him] but who had not been the lead charging party in an EEOC complaint or [who] ha[d] not filed federal court complaints against the agency and/or high-ranking officials of the agency and who have engaged in alleged acts of misconduct similar to or greater than acts alleged to have been committed by plaintiff and which form the basis of the . . . retaliatory actions against plaintiff yet have not been brought up on disciplinary charges or, if they have been charged, have not been subject to the severe disciplinary penalty of termination.
Co. at ¶ 38.
Section 704(a) of Title VII makes it unlawful to retaliate against an employee "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). "Plaintiff's burden of making out a prima facie case of retaliation is similar" to its burden as to a discrimination claim. See Norris, 2004 WL 1087600 at *7. "In order to establish a prima facie case of retaliation, an employee must show [1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action." Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004) (internal quotation marks and citations omitted). "A plaintiff may prove that retaliation was a motivating factor behind an adverse employment action either `(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.'" Parrish v. Sollecito, 258 F.Supp.2d 264, 268 (S.D.N.Y. 2003) (quoting Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)).
The plaintiff's burden as to a causal connection is a "light one, usually demanding only that the protected activity preceded the adverse action in order to satisfy the causation requirement." Rainola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001) (citation omitted).
a. Prima Facie Case
Plaintiff Simpson easily satisfies the first element of this retaliation claim. Plainly the filing of an EEOC complaint is a protected activity. See Gregory v. Daly, 243 F.3d 687, 701 (2d Cir. 2001) (internal quotation marks and citations omitted) ("[t]he law protects employees in the filing of formal charges of discrimination . . . so long as the employee has a good faith, reasonable belief that the underlying challenged actions of the employer violated the law"); see also Brown v. Town of Greenwich, No. Civ.A.3:02 CV 316 CF, 2004 WL 2106493, at *3 (D.Conn. Sept. 15, 2004) (plaintiff's EEOC complaint "undeniably qualif[ies] as protected activity under Title VII"). Similarly, prosecution of a lawsuit is a protected activity. See Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003). Furthermore, as the record shows, the defendants knew of both Simpson's filing of the EEOC complaint as well as his status as a plaintiff in theBouldin action; and there is no assertion to the contrary. Also, undoubtedly termination is "an employment action disadvantageous to plaintiff[.]" Labonia v. Doran Associates, LLC, No. 3:01CV2399, 2004 WL 1921005, at *10 (D.Conn. Aug. 25, 2004) ("no dispute that termination is a disadvantageous employment action").
In its opposition memorandum, the Department challenged plaintiff's ability to show a prima facie case of retaliation. Perhaps because of the foregoing, the Department shifted gears during oral argument, however, explicitly conceding that plaintiff " has made out a prima facie case [of] retaliation." Tr. at 31 (emphasis added). Based upon this concession, the court must next consider the second prong of the McDonnell Douglas analysis — the existence of a legitimate, non-retaliatory reason for plaintiff's termination.
Even though plaintiff's discrimination claim did not survive this summary judgment motion, that does not impact upon a prima facie finding of retaliation. See id. at *11 ("`[A] plaintiff may state a prima facie claim for retaliation even when her primary claim for discrimination is insufficient to survive summary judgment.'") (quoting Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 136 (2d Cir. 1999)).
b. "Legitimate, Non-retaliatory Reason" for Discharge
Presumably the Department's proffered reasons for terminating plaintiff are the same as those which it proffered in connection with his Title VII discrimination claim. As it did in connection with plaintiff's discrimination claim, and for substantially the same reasons, the court finds that the Department has met its burden of articulating a legitimate, non-retaliatory reason for terminating plaintiff. See supra discussion at 31-32. The burden thus shifts back to plaintiff Simpson to establish pretext. c. Pretext
Again, the parties did not engage in a complete McDonnell Douglas analysis with respect to this retaliation claim.
Although the Department has met its burden, the court is fully aware that "[a] plaintiff may establish a Title VII violation even when a retaliatory motive is not the sole cause of the adverse employment action, . . . or when there were other objectively valid grounds for a discharge." Raniola, 243 F.3d at 625 (citations omitted). However, "[a] retaliatory motive must be . . . `at least a `substantial' or `motivating' factor' behind the adverse action." Id. (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)) (other citation omitted). As the Second Circuit has explained, "[a] plaintiff may prove retaliation was a substantial or motivating fact behind an adverse employment action either (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similarly conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Id. (internal quotation marks and citation omitted) (emphasis added). "Under some circumstances, retaliatory intent may also be shown, in conjunction with the plaintiff's prima facie case, by sufficient proof to rebut the employer's proffered reason for the termination." Id. (citing Reeves, 120 S.Ct. at 2109).
Regardless upon which type of proof plaintiff Simpson is relying to show pretext, his Title VII retaliation claim cannot survive this summary judgment motion. In September, 1997 plaintiff filed a complaint with the EEOC, and in December 1998, he became a plaintiff in the Bouldin civil rights action. The first Notice of Discipline, which did not result in plaintiff's termination, was issued on January 11, 1999. Soffey Aff., exh. A thereto. Even on the theory that that first Notice resulted in an adverse employment action, because it started a chain of such notices which ultimately led to plaintiff's termination, the temporal proximity between the protected activities and that termination is insufficient to carry plaintiff's burden at the pretext stage. See Pellegrino v. County of Orange, 313 F.Supp.2d 303, 316 (S.D.N.Y. 2004) (internal quotation marks and citation omitted) ("Temporal proximity, standing alone, is insufficient to carry plaintiff's burden at step three [the pretext element.]")
Nor is there circumstantial evidence which would support a finding of pretext here. Plaintiff's circumstantial evidence is based upon his disparate treatment theory. As discussed in connection with plaintiff's discrimination claim, there are serious weaknesses in that evidence. See suprainfra discussion at 33-35. For substantially the same reasons which the court declined to find an inference of discrimination based upon a disparate treatment theory, it cannot find that plaintiff has shown that the Department's reasons for terminating him were a pretext for retaliation. Among these reasons is the fact that once again "[p]laintiff has not begun to demonstrate that [the Department's] proffered reason was false." See Hardekopf v. Sid Wainer Son, No. 02 Civ. 3251, 2004 WL 2199502 at *7 (S.D.N.Y. Sept. 29, 2004) (citation omitted).
Due to the lack of indirect or circumstantial evidence of pretext, plaintiff is left with no choice but to rely upon direct evidence. Not surprisingly, there is none. See Hardeman v. City of Albuqerque, 377 F.3d 1106, 1115 (10th Cir. 2004) (citation omitted) ("A lack of direct evidence is not . . . uncommon in retaliation cases like this one.") Consequently the court finds that "[p]laintiff has failed to demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation." Robinson, 2005 WL 272964, at *10 (internal quotations and citations omitted). Furthermore, as with plaintiff's discrimination claim, because his "termination is based upon the undisturbed decision of a neutral factfinder, that impartial decision is probative of a lack of pretext in [this] retaliation case." Norris, 2004 WL 1087600, at *15 (citing Collins, 305 F.3d at 119 n. 1. The Department is therefore entitled to summary judgment dismissing plaintiff's Title VII retaliation claim as well.
III. 42 U.S.C. § 1983
Having granted summary judgment in the Department's favor as to plaintiff's Title VII claims, the next issue is the viability of his section 1983 causes of action. As mentioned at the outset, plaintiff alleges that the individual defendants violated his First Amendment right to free speech and his Fourteenth Amendment Equal Protection rights. Defendants assert a number of reasons as to why they are entitled to summary judgment on both of these causes of action. For the moment, the court will focus on the merits, rather than the defenses such as lack of personal involvement and qualified immunity.
A. Fourteenth Amendment Equal Protection
The elements of an Equal Protection claim and a Title VII claim "are generally the same" insofar as the former is premised upon race and/or gender discrimination. See Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) (citations omitted); Jackson, 2004 WL 2472223, at *9. "Except, of course, that unlike a Title VII claim a Section 1983 claim can be brought against individuals." Id. at 159, n. 20. In any event, given the similarity between an Equal Protection claim and a Title VII claim, "the two must stand or fall together." Id. at 159 (citations omitted). Applying that reasoning to the present case, because plaintiff Simpson's Title VII claims have "fallen," so too must his § 1983 based Equal Protection claim.
In addition to an Equal Protection claim based upon race discrimination, it is possible to read plaintiff's complaint as asserting such a claim based upon membership in a "class of one," in that the "Simpson Rule" was supposedly promulgated because of him and no one else. To establish an Equal Protection cause of action under such a theory, "a plaintiff must demonstrate thathe is the victim of intentional and arbitrary discrimination, in that he has been intentionally treated differently than from others similarly situated, and that there is no rational basis for the difference in treatment." Jackson, 2004 WL 2472223, at *9 (citations omitted). "[T]he plaintiff must demonstrate that the defendants had a malicious intent to injure the plaintiff."Id. (internal quotation marks and citation omitted). Significantly, "[a] demonstration of different treatment from persons similarly situated, without more, does not suffice to establish malice or bad faith." Id. (citation omitted) (emphasis added).
Here, as in Jackson, "[p]laintiff has not provided any evidence from which a reasonable jury could possible find that she was intentionally treated differently than similarly situated employees, and that such treatment is indicative of discrimination." Id. Likewise, plaintiff Simpson "has not provided any evidence of vindictive action, illegitimate animus, or ill will on the part of the defendants." Id. Nor does the record as presently constituted support a finding "that the defendants' actions were irrational and wholly arbitrary." Id. Thus, if plaintiff Simpson also is predicating his Equal Protection claim on membership in a "class of one," defendants are entitled to summary judgment on this claim as well.
Accordingly, although not the stated bases for defendants' argument on this particular cause of action, the court grants the defendants' motion dismissing the § 1983 Equal Protection claim in its entirety ( i.e., 5th cause of action).
B. First Amendment Retaliation
"[A] plaintiff making a First Amendment retaliation claim under section 1983 must initially demonstrate by a preponderance of the evidence that (1) his speech was constitutionally protected; (2) he suffered an adverse employment decision; and (3) a causal connection exists between his speech and the adverse employment determination against him, so that it can be said that his speech was the motivating factor in the determination." Russo v. City of Hartford, 341 F.Supp.2d 85, 95 (D.Conn. 2004) (citing Mt Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87 (1977)). Similar to plaintiff's Title VII claims, the only disputed issue in terms of whether plaintiff can establish a prima facie case of First Amendment retaliation is the existence of a causal connection.
To satisfy this causal connection, "plaintiff must aver some `tangible proof' demonstrating that [his] protected speech animated [the Department's] decision to initiate disciplinary charges." Id. (citations omitted). Plaintiff cannot "rely on conclusory assertions of retaliatory motive." Washington v. County of Rockland, 373 F.3d 310, 321 (2d Cir. 2004) (internal quotation marks and citation omitted). That is all plaintiff Simpson has however. What is more, there is proof in the record that the Department was keenly aware of plaintiff's right to both file an EEOC complaint and to pursue the Bouldin action, and that they took steps to balance plaintiff's interests in pursuing those protected activities and the Department's own interest in "protect[ing] itself against misuse by the employee of his . . . position or Department resources to further such personal pursuit." Wall Aff. at 3, ¶ 9. For example, at the September 24, 1997 meeting, where the Simpson Rule was promulgated, Wall avers that he "immediately advised plaintiff that [he] recognized and respected [plaintiff's] right to pursue his claim of discrimination regarding the Batteries." Id. at 3, ¶ 10. At the same time, Wall "advised [plaintiff] that it was . . . [Wall's] responsibility to protect the legal interests of the Department."Id. This uncontroverted proof seriously undermines plaintiff's suggestion that there is a nexus between the filing of his EEOC complaint, and his being a plaintiff in the Bouldin case and his termination. In short, plaintiff has not met his burden of establishing a prima facie case of First Amendment retaliation. Therefore, the individual defendants are entitled to summary judgment dismissing this cause of action ( i.e., the third).
Having found that the individual defendants are entitled to summary judgment dismissing plaintiff's section 1983 causes of action renders moot defendants' alternative arguments, such as lack of personal involvement and qualified immunity.
In conclusion, pursuant to Fed.R.Civ.P. 56, the court hereby GRANTS summary judgment in favor of the defendants, the New York State Department of Civil Service, George Sinnott, sued in his individual capacity, Daniel E. Wall, sued in his individual capacity, John E. Soffey, sued in his individual capacity, and Frank S. Abrams, sued in his individual capacity. Judgment shall be entered accordingly.
IT IS SO ORDERED.