Summary
rejecting inference of retaliation because adverse employment action was taken over one year after plaintiff engaged in protected activity
Summary of this case from Crosland v. City of New YorkOpinion
No. 99 Civ. 5843 (GEL); 00 Civ. 3417 (GEL).
January 8, 2001.
Jamal Uddin, pro se, New York, N.Y. for Plaintiff Jamal Uddin.
Michael Tiliakos, Assistant Corporation Counsel, New York, N.Y. (Michael D. Hess, Corporation Counsel of the City of New York, Blanche Greenfield, Assistant Corporation Counsel, New York, NY, of counsel) for Defendant New York City.
OPINION AND ORDER
Plaintiff Jamal Uddin ("Plaintiff' or "Uddin") brings this Title VII action pro se, alleging that New York City ("City" or "defendant") and its Administration For Children's Services ("ACS") wrongfully discriminated against him on the basis of his national origin (Bangladeshi). Upon a liberal construction of plaintiffs claims, a claim for hostile work environment is also made. Defendant moves for summary judgment, arguing that plaintiff fails to state a claim under Title VII. For the reasons that follow the motion is granted in part.
FACTS
Except where noted, the following material facts are not in dispute, or are sufficiently supported by plaintiffs evidence that they must be accepted for purposes of defendant's motion. Plaintiff's national origin is Bangladeshi. (Uddin Decl. Ex. D. ¶ 17.) He was employed for thirteen years as a caseworker at ACS, prior to his leaving the agency on July 30, 1999. (Id. Ex. E at 23, 24, 209.) At least until March of 1997, plaintiffs performance evaluations and recommendation letters demonstrate that he was regarded as a highly competent employee. But in October of 1996, a new supervisor, Alice Yanes ("Yanes"), was appointed a Child Protective Manager ("CPM") at ACS. (Tiliakos Decl. Ex. 0 ¶ 2.) Yanes was responsible for managing the plaintiff, and shortly after her arrival issued the plaintiff a series of poor performance evaluations. In April, plaintiff was placed on field restriction, which required him to obtain approval from Yanes and other supervisors before leaving the office to attend court proceedings or check-up on clients. (Id. Ex. H, E. 452; Uddin Decl. Ex. B. 3-7, 11-13.) On June 20, 1997, plaintiff was brought up on formal charges of insubordination and unprofessional conduct. (Tiliakos Decl. Ex. F.) Plaintiff was ultimately suspended for ten days, and barred from future assignments in Protective Diagnostic Services. (Id) These penalties essentially foreclosed any opportunities for plaintiffs advancement within ACS. (Taurisano Decl. ¶ 28.)
At least for purposes of this motion, the following allegations from Uddin's EEO complaint appear undisputed: "I have been working for this agency for eleven and half years. I worked under a number of CPMs and supervisors, but I have never encounter [sic] anything like this. All my previous CPMs and supervisors until March 1997 had nothing but appreciation for my outstanding job performance." (Uddin Decl. Ex. F-8.) Uddin has provided a number of performance evaluations from managers who rated his performance (both before and after Uddin worked under Yanes) asinter alia "excellent," "skillful, professional," "exceptional," "very receptive to . . . supervision," "very conscientious about his work and motivated to perform well," "skillful, professional and assured," "continues to provide outstanding protective services in all respects," "energetic, comprehensive and effective." (Id. F-14.) See also Tiliakos Decl. Ex. C (plaintiffs application for promotion).
Plaintiff alleges that the charges and poor evaluations were fabricated as part of a plot, concocted by Yanes and other ACS supervisors, that was designed to "hurt [him] professionally." (P.'s R. 56.1 Counter Statement ¶ 9.) He cites a litany of disparaging comments and epithets made by Yanes, co-workers and other supervisors. These allegations include: (1) Yanes telling African-American employees to "look out for your own kind" (Tiliakos Ex. E at 91); (2) Yanes stating to her friend Robert Virgil ("Virgil"), another ACS supervisor, that "Uddin is a racist, bigot, and a woman hater. I am going to set him up for my friend William Bell to fire him" (id. at 88-89); (3) Yanes stating generally that she was "trying to get rid of this little Indian" (id. at 330); (4) Mary Richardson ("Richardson"), another African-American supervisor, stating to others that "these foreigners, why don't they go back where they came from" (id. at 141), and repeating a similar statement directly to the plaintiff (id.); (5) Virgil telling plaintiff "this is America, you know" and referring to plaintiff as a "little Indian" (id. at 141, 310-11; 323-25); (6) Virgil directing Richardson in plaintiffs presence to "document this Indian" (id. 310-11); (7) Pamela Smith ("Smith"), another African-American supervisor, "frequently" referring to plaintiff as a "Bangladeshi shit" (id. 129, 339, 341-46); (8) Smith stating to others after speaking with plaintiff, "I'm going to see this Bangladeshi shit. Who the hell does he thinks [sic] he is" (id. 339-40).
The parties attach hundreds of pages of deposition transcripts, some of which are overlapping or out of order, and most of which are unnumbered — after page 284, page numbers appear sporadically, about every 30 pages or so. The citations in this opinion are to direct quotations in the transcripts but at times the particular citation page is only an estimate.
Plaintiff complained about his treatment by Yanes, Virgil, Richardson, and Smith, and, on May 5, 1997, was transferred to a different unit within ACS. Six weeks later, however, without explanation, plaintiff was transferred back to Yanes's unit, where he worked under her authority until being permanently transferred to an ACS field office in December, 1997. (Uddin Decl. Ex. A-2 A-3.)
At the heart of this complaint is plaintiffs failure to secure two promotions — an intermediate-level supervisory position, and a "new title" as Child Protective Specialist ("CPS") — after thirteen years of service with ACS. The supervisory position was awarded to Mary Richardson, who is African-American, and whom plaintiff claims to be unqualified. The new title of CPS was established by ACS as a general "professional class" position in late 1998. (Taurisano Decl. ¶¶ 7-11; Tiliakos Decl. Exs. A B.) All caseworkers were encouraged to apply for the new title, and plaintiff was one of 4,000 initial applicants, of whom 3, 600 were accepted. Plaintiffs application was rejected. The only reason plaintiff received for his rejection was that he had been banned from protective service assignments. (Taurisano Decl. ¶ 22.) Therefore, plaintiff alleges, were it not for the incidents occurring during the eight months that plaintiff was under the supervision of Yanes, given plaintiffs extensive experience, his academic credentials, and his favorable performance evaluations, he would have secured a promotion to CPS. (Id. ¶ 27; P.'s R. 56.1 Counter Statement ¶¶ 27, 38.)
Prior Proceedings
On January 8, 1998, plaintiff filed a complaint jointly with the United States Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights ("NYSDHR") alleging discrimination based on national origin. (Tiliakos Decl. Ex. H.) On May 20, 1999, Plaintiff received notice of his right to sue. (Id.) On July 23, 1999, Plaintiff commenced proceedings in this Court alleging discrimination based on national origin. Plaintiff filed a second complaint with the EEOC on August 9, 1999, alleging that he was retaliated against on account of his first EEO complaint. (Id. Ex. I.) Plaintiff received a second right to sue letter on January 10, 2000. (Id. Ex. J.) A second action alleging retaliation was commenced on May 5, 2000. Judge Denny Chin ordered both actions consolidated for all purposes. (Id. Ex. L.) Defendant filed this motion for summary judgment on August 29, 2000, and the case was transferred to me on September 5, 2000.
DISCUSSION
A. Title VII Discrimination
The framework for analyzing summary judgment motions in employment discrimination claims was recently revisited by the Second Circuit inJames v. New York Racing Assoc., ___ F.3d ___, No. 00-7040, 2000 WL 1752908 (2d Cir. Nov. 29, 2000). In James, the Court of Appeals considered the effect of the latest ruling of the Supreme Court, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000), on prior circuit case law, as announced in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc). The Court concluded that Reeves was entirely consistent with Fisher, and left prior circuit law unchanged, since "both opinions essentially stand for the same propositions." James, 2000 WL 1752908, at *6.
Under the analysis applied in Fisher and reaffirmed in James, we begin by asking whether the plaintiff has established the "minimal" prima facie case defined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As the Second Circuit put it in James,
This requires no evidence of discrimination. It is satisfied by a showing of "membership in a protected class, qualification for the position, an adverse employment action," and preference for a person not of the protected class.James, 2000 WL 1752908, at *3. Meeting this test "creates a presumption that the employer unlawfully discriminated." Fisher, 114 F.3d at 1335. This presumption "places the burden of production on the employer to proffer a nondiscriminatory reason for its action." James, 2000 WL 1752908, at *3. If the employer fails to present such a reason, plaintiff prevails.
"On the other hand, once the employer `articulates a non-discriminatory reason' for its actions, Fisher, 114 F.3d at 1336, the presumption completely `drops out of the picture.' St. Mary's [Honor Ctr. v. Hicks], 509 U.S. [502,] 510-11 [(1993)]." Id. at *4. At that point, "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id. Evidence casting doubt on the employer's proffered justification "may — or may not — be sufficient" to provide this support. Fisher, 114 F.3d at 1333. Thus, when the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves, 120 S.Ct. at 2106).
A. Discrimination
It is conceded that plaintiff is a member of a protected class. (D.'s Mem. Law at 4.) The record further demonstrates that plaintiff was a qualified employee who suffered an adverse employment action by virtue of his non-promotion to a supervisory position and his non-appointment to a CPS title. Drawing all inferences in the light most favorable to the plaintiff, the litany of disparaging statements coupled with the undisputed evidence that plaintiff had no disciplinary problems or poor evaluations prior to Yanes's promotion to CPM, is more than sufficient for purposes of plaintiffs slight burden of proof at the prima facie stage. See, e.g., De La Concha v. Fordham Univ., 5 F. Supp.2d 188, 190 (S.D.N.Y. 1998) (finding evidence of plaintiffs adequate job performance and supervisor's use of racial slurs sufficient to establish inference of race discrimination).
Plaintiff also offers evidence that Richardson, who was African American, and was ultimately promoted by Yanes (ahead of plaintiff) to a supervisory position, was less qualified for the position than plaintiff. Plaintiff was with the agency longer, had a record of supervisory experience, had progressed further academically, and presented outstanding evaluations and letters of commendation. (Uddin Decl. Ex. P; Tiliakos Decl. Ex. E at 222.) The record also demonstrates that were it not for the incidents occurring during the eight months that plaintiff was under supervision of Yanes, plaintiffs extensive experience, his academic credentials, and his favorable performance evaluations, qualified him for the CPS title. (Taurisano Decl. ¶ 22; P's R. 56.1 Counter Statement ¶¶ 27, 38.) This is sufficient for purposes of establishing plaintiffs prima facie case.
Defendant advances a legitimate, non-discriminatory (and indeed, compelling) business reason for denying plaintiffs appointment to the new title series. It claims that plaintiffs failure to manage his caseload and general carelessness in performance of his official duties routinely placed children in danger. For example, defendant alleges that plaintiff failed to investigate reports that children were missing from their foster home, and that after he learned children were indeed missing, he failed to file a required petition by which ACS could have obtained legal custody of the children. (Tiliakos Decl. Ex. F.) Defendant further alleges that plaintiff failed to follow simple instructions, failed to attend required court proceedings, and failed to contact supervisors before taking sick leave. (Id.) Finally, defendant claims that plaintiffs ban from protective service assignments prevented him from performing the essential duties of a CPS caseworker, which involved constant contact with children. (Taurisano Decl. ¶ 19, 22, 23.) These legitimate explanations are sufficient to shift the burden of proof back to the plaintiff to show that they are pretextual. See, e.g., Griffin v. Ambika Corp., 103 F. Supp.2d 207, 308 (S.D.N.Y. 2000) ("Given the low threshold that defendants must meet, there can be no doubt that . . . complaints lodged against plaintiffs for poor performance constitute sufficient legitimate grounds to shift the burden back to plaintiffs to make their ultimate case") (internal citations omitted).
On the ultimate issues of discrimination, however, reasonable jurors could find for the plaintiff in this case. Plaintiff alleges that defendant's explanations are pretextual. that Yanes coordinated with others to sabotage plaintiffs case files so as to "make sure" that he would never be promoted, and that all of the charges of deficient performance are untrue. (P's R. 56.1 Counter Statement ¶¶ 9, 38; Tiliakos Decl. E. at 143-170.) He further claims, with supporting evidence, that upon Yanes's arrival his management of caseloads was among the best in his unit, and, in any event, that it was unprecedented for a high caseload to justify placing a caseworker on field restriction, as plaintiff was in April of 1997. (Uddin Decl. Ex. A-1; E-1 at 256.) The record contains evidence supporting plaintiffs narrative: There is no dispute that for all but an eight-month period during which Yanes was his supervisor, plaintiff compiled an unblemished thirteen-year record at ACS. He never received a poor evaluation, let alone was placed on field restriction or brought up on formal disciplinary charges. (Uddin Ex. P; Tiliakos Decl. Ex. E. 113, 123.) There may well be a logical and non-discriminatory explanation for what appears to be plaintiff's anomalous eight-month period of deficient performance reviews. It is possible, for example, that Yanes arrived at plaintiffs unit to clean house, and that prior to her arrival plaintiff had managed to loaf below management's radar screen. But at this stage of the proceedings — or at any stage without some proof — I cannot conclude that from 1986, when the plaintiff was hired, until late 1996. when Yanes came on board, ACS operated so dysfunctionally as to allow caseworkers to ignore their responsibilities and thereby place the City's at-risk children in danger of abuse, or worse. Like all employment discrimination cases, this action involves difficult issues of motivation and intent, and while it is certainly true that ACS serves a critical public function and must be allowed substantial leeway to discipline caseworkers who shirk their responsibilities — responsibilities owed not only to ACS supervisors but also to the safety and well-being of the City's most penurious children — there is a genuine issue of fact on this record as to whether the complaints about plaintiffs performance were pretexts for discrimination prohibited by federal law.
Moreover, this is not a case in which plaintiff relies solely on evidence creating an issue of fact about the legitimacy of defendant's explanation. In addition, plaintiff presents evidence that his supervisors, whose actions affected the challenged adverse employment actions, displayed overt hostility toward Uddin based on his national origin. A jury might well reject Uddin's account of hostile remarks, or conclude that the adverse actions were justified. But if plaintiff's supervisors subjected him to a barrage of insults and disparate treatment on account of his Bangladeshi origin, and his thirteen-year employment history was otherwise favorable — both of which a jury could find on this record — then there is a genuine issue as to the defendant's true intent. Therefore, because the evidence on the whole of this record could "reasonably support a finding of prohibited discrimination," James, 2000 WL 1752908, at *4, the defendant's motion for summary judgment on plaintiffs discrimination claims is denied.
B. Hostile work environment
Plaintiffs evidence also supports a hostile work environment claim. Whether a work environment is sufficiently abusive to be actionable under Title VII depends upon the totality of the circumstances, and includes considerations such as (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee's work performance. See Harris v. Forklift Systems Inc., 510 U.S. 17, 23 (1993). For "comments, slurs, and jokes to constitute hostile work environment, there must be more than a few isolated incidents." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal quotations marks omitted).
On an evaluation of this record concerning the environment in the ACS unit where Uddin worked, reasonable jurors could find that environment "hostile" pursuant to Title VII. Apart from the barrage of comments directed at plaintiffs Bangladeshi origin, plaintiff also alleges that physical threats were directed against him by Yanes and Virgil, all in front of other staff members. (Uddin Decl. Ex. E-1.) Yanes and Virgil allegedly referred to plaintiff as an "idiot," "punk," and worse. (Tiliakos Decl. Ex. E. 257-61.) At one point, after Virgil learned plaintiff would need a "few more minutes" to complete a memorandum, he approached plaintiffs cubicle and ordered plaintiff to "come out" so he could "teach [plaintiff] a lesson." (j4. at 262, 267.) Plaintiff alleges further that Yanes removed case files from his desk without explanation (Uddin Decl. Ex. E-1 at 169; Ex. D-1), and that supervisors would not return his calls (Tiliakos Decl. Ex. E. at 130), thereby impeding his ability to manage his caseload with diligence — as he apparently had done for eleven years prior to Yanes's arrival at his unit. Moreover, Uddin presents evidence that he was abused and insulted by Yanes upon his return to work after a four-day sick leave and that at one point Yanes prevented plaintiff from leaving the office until a co-worker verified to Yanes that plaintiff had completed all required work for the day. (Id. at 347.) At times, plaintiff alleges Yanes stared at him "with a bizarre and disrespectful look" as if she was "looking for a fight" or "trying to provoke [him] to respond." (Uddin Decl Ex. E-1.) On those facts, the doctrine of "stray remarks" does not defeat plaintiff's claim as a matter of law; all of the cited incidents — the slurs, the threats, the looks, and the intimidation — occurred within the eight month period during which Yanes served as Uddin's manager. The City of course disputes most of plaintiffs allegations, and a jury may well reject his account, or conclude that any abusive behavior was unrelated to the alleged national origin bias, but the glaring disparities in deposition testimony, affidavits, and record evidence alone is sufficient to defeat their motion for summary judgment on plaintiffs hostile work environment claim. See American Intern'l Group v. London American Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981) ("[T]he responsibility of the district judge on a motion for summary judgment is merely to determine whether there are issues to be tried, rather than to try the issues himself via affidavits") (internal quotation marks omitted).
Defendant argues that Uddin is barred from citing instances of discriminatory conduct occurring prior to Mary 14, 1997, because his complaint was not filed within 300 days of their occurrence. (Def.'s Mem. Law at 22-23.) But whether or not that is so — and there is some question given the "continuing violation" exception to the 300 day rule, See.e.g., Fleurcius v. Short Line Hudson Transit Bus Co., No. 99 Civ. 2754 (DC), 2000 WL 1863536, at *3-4 (S.D.N.Y. December 20. 2000) — such time-barred incidents are few and do not bear on resolution of this motion. The alleged physical altercation between plaintiff and Virgil occurred on November 14, 1997. and the primary incidents of slurs and epithets occurred during or after April of 1997. (P.'s R. 56.1 Counter Statement ¶¶ 46-54.)
C. Retaliation
Plaintiffs retaliation claim, however, fails. To establish a prima facie case of retaliation, plaintiff must demonstrate (1) that he was engaged in an activity protected under Title VII; (2) that the employer was aware of his participation in the protected activity; (3) that he suffered an adverse employment decision; and (4) that there was a causal connection between the protected activity and the adverse action taken by the employer. See Malarkey v. Texaco. Inc., 983 F.2d 1204, 1213 (2d Cir. 1993). It is established in this Circuit that conclusory allegations which lack specificity necessary to establish the causal link between the protected activity and the retaliatory treatment do not state a prima facie case. See Hollander v. American Cyanimid Co., 895 F.2d 80, 86 (2d Cir. 1990).
Plaintiff engaged in protected activity by filing a complaint of discrimination with the EEOC on January 8, 1998. However, the filing of that claim post-dates plaintiffs 1997 disciplinary charges, his non-promotion to a supervisory position, and his transfers to and from Yanes's ACS unit. (Def.'s 56.1 Statement ¶¶ 40, 56, 59; Tiliakos Decl. Ex. E. at 75-80, 237; Ex. F.) Plaintiffs new title application, on the other hand, was denied more than one year after his January 8, 1998, complaint. But that length of time alone attenuates the required causal connection, see Edwards v. Interboro Inst., 840 F. Supp. 222, 229 (E.D.N.Y. 1994) (noting that "close temporal relationship between the protected activity and the employment action as a factor relevant to causality") (internal citations omitted), and there is no credible allegation that the actors involved in awarding CPS status were also involved in the institution or administration of plaintiff's disciplinary proceeding. Plaintiffs claim in this case is essentially that his records were sabotaged and his reputation sullied on account of his Bangladeshi origin. But even if that allegation is true, once plaintiffs disciplinary proceedings were instituted — regardless of whether those proceedings were a pretext for discrimination — it was clear that plaintiff would not qualify for a new title. (Taurisano Decl. ¶¶ 22-23.) Therefore, since it was the disciplinary proceedings which doomed plaintiff's chances for a new title, since plaintiff filed his EEO complaint after those proceedings were instituted, and since there is no credible allegation in the record that the actors who denied plaintiff a new title were also responsible for instituting or otherwise encouraging those disciplinary proceedings, there are no triable issues as to whether those same actors denied plaintiff's CPS application in retaliation for his filing an EEO complaint.
Plaintiffs vague and general allegations that William Bell, the Deputy Commissioner of ACS, and a member of the panel who rejected plaintiffs new title application, was a "close friend" of Yanes and therefore in cahoots with her campaign to sabotage plaintiffs career at ACS, lacks the specificity necessary to establish the required causal connection between plaintiff's EEO complaint and Bell's vote not to recommend plaintiff for the CPS title. See, e.g., Bickerstaff v. Vassar College, 196 F.3d 435, 451-52 2d Cir. 1999) (to defeat summary judgment, plaintiffs's evidence "must be based upon concrete particulars, not conclusory allegations"). Yanes has testified that she had no influence with the selection committee, and was not even aware that plaintiff had applied for a new title. (Tiliakos Decl. Ex. O ¶ 4.)
CONCLUSION
Defendant's motion for summary judgment on plaintiffs claims of discrimination and hostile work environment — No. 99 Civ. 5842 — is denied. The motion for summary judgment on plaintiffs claim of wrongful retaliation — No. 00 Civ. 3417 — is granted.
SO ORDERED: