Williams v. NYC Dep't of Sanitation

Full title: BILL K. WILLIAMS, Plaintiff, v. NYC DEPARTMENT OF SANITATION, Defendant

Court: United States District Court, S.D. New York

Date published: Sep 28, 2001

00 Civ. 7371 (AJP) (S.D.N.Y. Sep. 28, 2001)

Opinion

00 Civ. 7371 (AJP).

September 28, 2001

OPINION AND ORDER

ANDREW J. PECK, United States Magistrate Judge:

Pro se plaintiff Bill Williams, an African-American male, brought this Title VII action against his current employer, the New York City Department of Sanitation, alleging that he was (1) discriminated against due to his race, color and religion when he was harassed at work and charged with disciplinary infractions on several occasions, and (2) subjected to retaliation as a result of his discrimination complaints. (Dkt. No. 1: Cplt. ¶¶ 4, 7-8.) The Sanitation Department has moved for summary judgment. (Dkt. Nos. 10-13.)

The parties have consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See Dkt. No. 7.)

For the reasons set forth below, the Sanitation Department's summary judgment motion is GRANTED.

FACTS

Background

Plaintiff Bill Williams is a "Hebrew," African-American male and has been employed by the Sanitation Department as a sanitation worker since July 1997. (Dkt. No. 11: Sanitation Dep't 56.1 Stmt. ¶¶ 1-2; see also Cplt. ¶ 7; Ex. A: Williams Dep. at 114, 121, 147.)¹

1 References to lettered exhibits refer to the Sanitation Department's exhibits attached to the 3/19/01 Affidavit of Assistant Corporation Counsel Lisa A. Weiss. In his papers and deposition, Williams asserts that he is "Hebrew," not Jewish. (See Williams Dep. at 114, 121, 147.)

Williams alleges that on three occasions he was targeted at work and discriminated against by supervisors due to his race, color and religion, and that, in general, he was treated "unfairly". (See Cplt. ¶¶ 4, 7-8; Dkt. No. 16: Williams Aff. ¶ 3; Dkt. No. 17: Williams Amended Aff.: 4/14/00 Williams OEEO Complaint; Ex. G: 5/2/00 Williams OEEO Interview Transcript ["Tr."] at 3; Williams Dep. at 106.) Williams further alleges that he was retaliated against for reporting the unfair treatment to his union, the Sanitation Department's Office of Equal Employment Opportunity ("OEEO") and the United States Equal Employment Opportunity Commission ("EEOC"). (See Cplt. ¶ 8.)

Williams Suspension

On July 1, 1999, Williams was out sick from work on paid leave and violated Sanitation Department rules requiring that he remain at home and respond to telephone calls from work. (Ex. O: 8/19/99 Sanitation Dep't Complaint.) The Sanitation Department brought a disciplinary proceeding against Williams. (Id.; see also Ex. M:12\13\00 Oath Report Rec. at 2.)

A disciplinary hearing, at which Williams was represented by counsel, was held on October 3, 2000 before the Office of Admini strative Trials and Hearings ("OATH") (see Ex. M: 12/13/00 OATH Report Rec. at 1-2), an independent City agency that hears matters involving City employees and makes recommendations to the employer's office of labor relations. See, e.g., Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at * 3 (S.D.N.Y. May 9, 2001) (Peck, M.J.). The OATH Administrative Law Judge ("ALJ") upheld the charges and recommended that Williams be suspended without pay for three days. (Ex. M: 12/13/00 OATH Report Rec. at 12-13.)² The ALJ's decision was approved by the Sanitation Department on December 20, 2000 (id. at 13), and Williams was suspended for three days in February 2001. (See Williams Dep. at 172; Dkt. No. 12: Sanitation Dep't Br. at 5, 14.)

2 The ALJ noted that longer suspensions had been imposed on other Sanitation workers for the same infraction, but stated that "[i]n light of this respondent's excellent prior record over three years of employment, and the nature of the misconduct found herein, namely, a single out-of-residence violation, I recommend that the respondent be suspended without pay for three days." (Ex. M: 12/13/00 OATH Report Rec. at 13.)

Other Disciplinary Infractions, Pending Charges and Work Incidents

Williams complains of a series of work incidents which he alleges support his claim of "harassment," discrimination and retaliation. (See generally Williams Amended Aff.: 4/14/00 Williams OEEO Complaint; Ex. G: Tr. 1-15.)

On November 17, 1999 and December 31, 1999, Williams was cited for failing to obey direct orders given by a supervisor. (Ex. C: 11/17/99 Complaint by Supervisor Thomas Aguayo (street cleaning route was "not completed as ordered"); Ex. D: 12/31/99 Complaint by Thomas Aguayo (Williams was watching television when he should have been working).) Williams also asserts that on November 26, 1999, after Williams returned from an eight-day vacation, Supervisor Aguayo, for the purpose of harassing Williams, assigned Williams to a cleaning route that Williams had previously failed to clean to Aguayo's satisfaction on November 17, 1999. (Ex. G: Tr. at 1-4; Williams Amended Aff.: 4/14/00 OEEO Complaint.)

In early February 2000, when Williams stopped to rest during a snow clearing detail, Supervisor Thomas Moricone allegedly grabbed a shovel from Wi lliams' hands. (Williams Amended Aff.: 4/14/00 OEEO Complaint.) On February 8, 2000, a supervisor in the Sanitation Department's Safety Unit determined after an accident that Williams was "negligent" in that he was "involved in a collision" with a civilian vehicle "that resulted in property damage" and Williams "failed to have [his] vehicle under control." (Ex. E: 3/27/00 Complaint by Supervisor Frank Lombardo.) On February 22, 2000, when Williams attempted to change the dates of his scheduled vacation, the Sanitation Department denied Williams' request "[b]ased on the employee's record" and because of an "unfavorable recommendation for this employee by his supervisor, district superintendent Boro [sic] Commissioner." (Williams Amended Aff.: 2/22/00 2/26/00 Interview Request Forms.)

On October 14, 2000 the Sanitation Department charged Williams with not performing his duties properly and leaving his work site without authority. (Ex. L: 10/14/00 Sanitation Dep't Complaint by E. Woods.)

Williams reported these incidents to his union, alleging unfair treatment. (See Ex. G: Tr. at 1, 4, 7, 10, 13; Cplt. ¶ 8; Williams Dep. at 170.) As of the submission of the parties' summary judgment papers, disciplinary hearings had not been held on any of these charges (nor did the parties provide any information as to when and if OATH hearings are to be held) and the charges apparently are still pending. (See Williams Dep. at 58; Ex. G: Tr. at 13.)

Williams' Complaint to the Sanitation Department's OEEO

In April 2000, Williams filed a complaint of discrimination based on race and color with the Sanitation Department OEEO office. (Williams Amended Aff.: 4/14/00 Williams Complaint to OEEO.)

On May 2, 2000, an OEEO Investigator contacted Williams to interview him regarding his complaint. (See Ex. G: Tr. 1-15.) Because the incidents on which Williams bases his discrimination claim were discussed in detail in his conversation with the OEEO, the Court quotes the transcript of the OEEO Investigator's interview with Williams at length:

[OEEO INVESTIGATOR]: [regarding 11/17/99] [S]upervisor Aguayo gave you a complaint because in his view the work was not done to his satisfaction.

B. WILLIAMS: Yes, exactly.

[OEEO INVESTIGATOR]: Have you ever had any problems with Supervisor Aguayo before or frequently?

B. WILLIAMS: No. Not really. . . . Actually, he's a very nice guy, but lately he's been trying to make a name for himself as being tough. He has a reputation of being soft, but he's trying to change that reputation on my expense.

[OEEO INVESTIGATOR]: The next incident occurred on 11/26/99, where you are again on a WEP [cleaning] detail. What happened that day?

B. WILLIAMS: I came in 7 to 3, WEP detail. This is after I came back from vacation. I was away in the Carribean for 8 days. I came back 11/26/99. . . . [Supervisor Aguayo gave me] the exact same route he told me to do on 11/17/99. So he did that to mess with me. He had 8 days to get someone. If he didn' t like how I did the work, he had 8 days to send someone else back there, and he didn't send anyone else back there. He waited until I got off vacation and send me back there.

. . . .

[OEEO INVESTIGATOR]: . . . [Y]our perspective on that whole thing [was] he just had it in for me; he waited all this time until I came back and then just reassigned me back to where I was.

B. WILLIAMS: Right. Exactly. I didn't refuse. I went back out there.

. . . .

[OEEO INVESTIGATOR]: Your objection to the whole incident is that you felt you were being targeted by Supervisor Aguayo in his waiting, in your perspective, the whole week until you came back. Then he would just send you to that particular spot [as] originally.

B. WILLIAMS: Right.

. . . .

[OEEO INVESTIGATOR]: The third incident you mentioned . . . happened on 12/31/99

. . . .

B. WILLIAMS: We signed in. Everyone was in the lounge watching TV. Aguayo and [Supervisor] McCorm[a]ck [were] saying, really, [there]'s nothing to do. You guys are on stand by. There's going to be some big chief that comes by later on in the night, but basically you guys are on stand by. Aguayo mentioned that some guys are going to go downstairs and sweep up. Some guys are goi ng to stay up here and sweep up. He was never specific about it. . . . So I was watching TV after I finished my work. [Aguayo] said, what are you doing? On the complaint he said I replied to him, "I'm sitting down watching TV." I never replied anything like that. When he asked me what I am doing, I said, what do you mean what am I doing? Aren't we on stand by? You told us to do this and do that. It's finished. Do you have something else for me to do? If you have something else for me to do just tell me and I'll do it. Well, I want you to help the guys downstairs. I said, sure. No problem. Picked up my gloves and went downstairs. . . . It took me about 20-30 minutes to do the work and that was it. . . .

I didn't refuse [Supervisor] McCorm[a]ck [as the complaint represents].

. . . .

[OEEO INVESTIGATOR]: So these are then the three specific incidents that you referred to as far as in your complaint that you submitted to us. Are there any other incidents that you feel you would like to relate to us at this point, that you believe will support your view that you're being harassed, picked on and picked on unfairly?

B. WILLIAMS: Yes. On February 8, 2000. . . . I was on WEP detail and I was driving on East 188th Street from the Grand Concourse all the way down to Webster. . . . [A civilian car] hit my bumper as I was coming down. . . . He said, I don't want the police involved or anything. I said, well, . . . . I have to call my district to let them know I got into an accident. So I called up.

. . . .

. . . I never lost control of the vehicle. . . . It wasn't [the] Sanitation's vehicle that was damaged. It was the [civilian] car that was damaged. So I didn't damage any Sanitation vehicle. It didn' t even leave a scratch on it. . . . On March 28th, over a month after the incident, [I got the complaint]. . . . They wanted me to spend time on the street for that. An accident can happen to anyone. Why am I getting a complaint and having me take a day for something like that. Accidents are happening. . . .

[OEEO INVESTIGATOR]: . . . In the four specific [instances], including this one that you mentioned . . . . where you feel you're being harassed. . . . [a]re they happening to you because you're black or is it a question of how they view you as an individual.

B. WILLIAMS: I think actually, presently, truthfully and honestly, I think it's both; that I'm black, as far as my attitude, that attitude is just a meaning of intelligence. He's smart. He doesn't take anything. If there's something he feels it' s wrong being guided at him, he's going to speak up about it. He's not passive. He's just going to speak up about it. Some people just get threatened by black intelligent men. Intelligent Puerto Ricans. You know. Intelligent minorities. . . . You're supposed to be passive. Don't say anything. . . .

[OEEO INVESTIGATOR]: . . . [Have] there been any verbal comments made towards you by the individuals that have been in a sense, as you put it, harassing you that would give some type of indication that may then show they are prejudice[d].

B. WILLIAMS: They would never say that in front of my face, because usually when I'm with them there's witnesses.

[OEEO INVESTIGATOR]: . . . The composition of these other individuals . . . [who engage in the same behavior]. Are they non-black?

B. WILLIAMS: There's mix, they're white and blacks.

[OEEO INVESTIGATOR]: In other words, some . . . favoritism is also shown to blacks?

B. WILLIAMS: Oh. Yes. There's a reason for that though. I can't prove it, but . . . . [the other minority workers] can't say anything because when you look at their records, it's like . . . . [the Sanitation Department has] so much dirt on you. . . .

. . . [T]here's a lot of uncle Toms in there. It's a black, white thing but then again, it' s not a black, white thing. But usually the blacks would get away with things. They have so much dirt on their record that they can't say anything. So they'll just side with management. They'll do whatever management says . . .

. . . . .

[OEEO INVESTIGATOR]: . . . The problem that EEO has is that unless the individual can provide us with some type of concrete evidence, whether written or statement of others that can say, yes we believe that these things happened to Bill K. Williams because . . . and that the reason is indeed an issue or a point that is protected by EEO laws. Then it' s a problem because we can't go by a view point, which may be correct. At this point I' m not disputing your perspective. But how does one prove that the actions of this individual supervisor [were] premeditated by his racism or discriminatory . . . .

B. WILLIAMS: That I can't prove.

. . . .

. . . [T]here was another incident [on 2/22/00] where I had wanted a vacation change. . . . .

If [the dates I wanted were] closed [i.e., unavailable], they can't do anything about it, but [the dates were] open. . . . I never got any papers telli ng me why they denied it. . . . It was open. It was no problem. . . . I had spoke[n] to the union representative . . . . I said, well, why was it denied. . . . [The union representative said:] Well, you have too many complaints. You have a bad record.

. . . .

[OEEO INVESTIGATOR]: Was that other sanitation worker that you know [who was permitted to go on vacation on those dates] . . . white?

B. WILLIAMS: No. He's Hispanic and got a lot of years on the job. . . . [A supervisor said there has] to be some type of emergency to get your vacation changed. I thought it just had to be open if you wanted the vacation change. My emergency is I just canceled my trip to leave the country. I just moved it up the month. That's all. I look at it as an emergency. . . . But the thing was I'm sure [the other worker] didn' t have any written document or anything [demonstrating] why he wants the vacation change. . . . He didn't have to come up with any proof. There was [also] another sanitation worker. His mother had some problems [and]. . . . [h]e had to go to Puerto Rico. Yes. He had proof and everything, but this other [Hispanic] guy I'm talking about. They didn't ask him for any proof or anything. They just changed it.

(Ex. G: Tr. at 2-14, emphasis added.)

The Sanitation Department's OEEO Findings

On May 9, 2000, after an investigation, the Sanitation Department's OEEO issued the following findings:

Bill K. Williams was interviewed at the Office of Equal Employment on May 2, 2000 in response to his request to discuss a number of incidents he said were discriminatory.

Williams, a Black Sanitation Worker at Bronx 5, alleges that on three separate occasions, actions taken against him by Supervisors Aguayo and Moricone were acts of discrimination because he is Black.

On November 17, 1999 Williams said he was given a W.E.P. street cleaning detail that Williams claimed was a two man job. He said he finished in an hour and then Supervisor Aguayo told him it was not done properly and to go back and cl ean it up some more. On November 26, 1999, after a one week vacation, Williams was again assigned the same route by Aguayo. Williams said Aguayo could have sent others during that week and he feels that doing the same route was harassment by Aguayo.

On December 31, [1999] Williams said he volunteered to work the 7 p.m. to 7 a.m. shift. W illiams said he was given a complaint by Aguayo for refusing to foll ow an order by another supervisor, Michael McCormack. Williams said McCormack had told him to clean an area in the garage and because he did not do it right away and Aguayo saw him sitting momentarily, he got the complaint.

On February 5, 2000 Williams said whi le on snow cleaning duty, he took a momentary rest on his shovel. Williams said that Thomas Moricone, a supervisor on the detail, came over and grabbed the shovel out of his hands, and after an exchange of words Moricone told him to do the job.

Williams also cited a complaint he received on March 27, 2000 for causing an accident [on February 8, 2000] while drivi ng alone, which he blames on the other driver involved, a civilian. . . . A week or so later Williams received the complaint, saying that Safety had determined he was at fault. Williams said he is scrutinized and punished more than others in the District. He said "other" employees came in late, or get caught doing things on City time and nothing happens to them. Yet if he comes two minutes late, he gets written up and docked pay.

Williams was asked the ethnicity of most of the "other employees" and he said they were mostly Black. . . .

I spoke to Supervisor Aguayo and he said that on the W.E.P. detail of November 17, 1999, [h]e went to check the area assigned to Williams and saw some debris still laying on the street, so he made Williams clean it up. Aguayo also said the same route was cleaned at least once during the week Williams was on vacation, contrary to [Williams'] statement. The complaint [Aguayo] gave Williams on December 31, 1999, was because Williams was watching television instead of cleaning the areas the approximately seven men detail on that night were told to do. Aguayo said he and Supervisor McCormack gave the men an easy assignment just to keep them busy, but while others were working, Williams was not. Aguayo said that while he has not had problems with Williams, Williams at times gets an attitude about following orders he may not like.

In the first incident, Supervisor Aguayo was within his rights to order Williams to do a better job and to assign him to the same route a week later. In the second incident, Williams was given an order by Supervisor McCormack, and when sometime later Aguayo saw him sitting, not yet having started the assignment, he was then given the complaint as per procedure.

The [2/5/00] incident with [the shovel involving] Supervisor Moricone again illustrated a supervisor catching Williams resting and calling it to his attention, though perhaps not in the best possible manner. The issue of the complaint given to Williams as a result of the accident again is within proper Departmental procedures and Williams can simply contest it at the Departmental hearing.

After reviewing the incidents cited by Williams, this office has concluded that Williams has not proved the incidents to be discriminatory with respect to E.E.O. laws. Rather they are labor issues to be resolved with the assistance of his union, or at the complaint hearings.

(Ex. H: 5/9/00 OEEO Investigator File Memo, emphasis added.)

Williams' EEOC Complaint

On July 10, 2000, Williams filed a charge of discrimination with the United States EEOC, claiming discrimination based on race, color and religion, as well as retaliation. (Ex. I: 7/10/00 Williams' EEOC Charge of Discrimination.) In his charge, Williams alleged:

On 11/17/99 Supv. T. Aguayo said I refused a[n] order from him, which isn't true. On 12/31/99 Supv. T. Aguayo said I refused an order from Supv. M. McCormack, whi ch wasn't true, I believe he said it based on my race or color. On 2/8/00 the safety dept said I caused an accident, which wasn't true, I think it was based on my race. Because when they got the report they knew exactly who it was. Meaning it was me, Bill K. Williams a Black man.

(Id.)

The EEOC closed its file because the "facts alleged in the charge fail to state a claim [of discrimination] under any of the statutes enforced by the EEOC," and issued a Right to Sue Letter. (Exs. J K: 7/20/00 EEOC Right to Sue Dismissal Letters.)

Williams' Present Federal Lawsuit

Williams filed his present pro se action in this Court on September 28, 2000, alleging that he was discriminated and retaliated against based on his race (African-American) and his religion (Hebrew). (Dkt. No. 1: Cplt. ¶¶ 4, 7-8; see fn. 1 above.)

In his complaint, Williams alleges the following:

On 11/17/99 12/31/99 Supv. T. Aguayo lied [about] me and said I refused a direct order from him and Supv. M. McCormack.

On 2/8/00 the safety unit said I caused an accident; and said that I was negligent: I received the complaint on 3/26/00. Everything Supv. Aguayo said is on paper and in my file. In all three cases it was because of my race and retaliation that the department strikes out at me in this manner, and there has been other times they discriminated against me, [which] I brought to the attention of my union, EEO, and the EEOC.

(Cplt. ¶ 8.)

After the conclusion of discovery, the Sanitation Department moved for summary judgment, arguing that: "(1) [Williams] fails to state a cognizable claim of discrimination under Title VII; (2) . . . has failed to establish that defendant retaliated against him for engaging in a protected activity; and (3) that, even if plaintiff does establish a prima facie case of retaliation, defendant has shown a legitimate non-discriminatory reason for plaintiff' s three-day suspension." (Dkt. No. 12: Sanitation Dep't Br. at 1.)

In opposition to the Sanitation Department's motion for summary judgment, Williams submitted a four-paragraph affirmation asserting that "[t]he motion should be denied because I can prove discrimination . . . . I told [the Court in a conference] . . . that I couldn't really prove discrimination, however I believe at this time that I can prove my case based on race." (Dkt. No. 16: Williams Aff. ¶ 3, emphasis in original.)

On April 17, 2001, the Court issued an Order providing, in full :

Plaintiff Williams must present evidence in opposition to defendant's summary judgment motion. See Federal Rule of Civil Procedure 56 and SDNY Local Civil Rule 56.1. His opposition papers were due 4/17 — The Court extends that time to 4/27. Failure to submit evidence will result in the Court granting defendant's motion.

(Dkt. No. 15, emphasis in original.)³

3 Defendant's counsel had served an "Amended Notice to Pro Se Litigant Opposing Summary Judgment," advising Williams of the requirements for opposing the motion. (See Dkt. No. 13:3/27/01 Notice.)

In response to the Court's order, Williams again submitted the same four-paragraph affirmation, labeled it "Amended Affirmation" and annexed,inter alia, Sanitation Department and Department of Motor Vehicles reports pertaining to his February 8, 2000 accident, his request to change his vacation dates and the denial of his request, his Sanitation Department OEEO complaint, copies of the disciplinary complaints brought against him, and a copy of the October 3, 2000 OATH hearing transcript. (See Dkt. No. 17: Williams Amended Aff. attachments.)

Essentially, Williams alleges that he was discriminated against, treated "unfairly" (Williams Dep. at 106), harassed with "bogus" complaints (Ex. G: Tr. at 9), and "scrutinized and punished more than others in the District" (Ex. H: 5/9/00 OEEO Investigator File Memo at 2). Williams asserts that his supervisors are "racist" (Williams Dep. at 105-06), and that although most of his coworkers are black (Williams Dep. at 56), he experienced problems because he was a "black, intelligent" man who "doesn't take anything" and who "speak[s] up." (Ex. G: Tr. at 9).⁴

4 On May 1, 2000, Williams transferred to another Sanitation Department location closer to his home. (Ex. A: Williams Dep. at 35, 39, 176.) Williams testifi ed that he does not have problems at his new place of employment because the "sanitation workers stick together there. We look at it like we are all green." (William Dep. at 80.) Williams testified that his new post is "a mixture of black and white and Hispanic," whereas his old post was mostly black and had a lot of "cliques." (Id. at 82.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARDS IN EMPLOYMENT DISCRIMINATION CASES ⁵

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendant. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970);Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on whi ch the non-movant has the burden of proof.See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; see also e.g., Weinstock v. Columbia Univ., 224 F.3d at 41 (at summary judgment, "[t]he time has come . . . `to put up or shut up'") (citations omitted).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifi able inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.⁶ The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented.See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.

6 See also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 1907 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citations omitted); see also e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential, 22 F.3d at 1224.⁷ Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential, 22 F.3d at 1224. "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff' s position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citati ons omitted). Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer.E.g., Budde v. HK Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at * 1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiff' s explanation of intentional discrimination.") (internal quotations alterations omitted); Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S. Ct. 851 (1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").⁸ Indeed, the Second Circuit "went out of [its] way to remind district courts that the `impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d at 41;see also e.g., Gonzalez v. New York City Transit Auth., 2001 WL 492448 at * 7; Economou v. Caldera, 2000 WL 1844773 at *13.⁹ II. LEGAL PRINCIPLES GOVERNING EMPLOYMENT DISCRIMINATION ACTIONS ¹⁰

7 Accord, e.g., Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardozo v. Healthfirst Inc., 98 Civ. 3050, 1999 WL 782546 at * 1-2 (S.D.N.Y. Sept. 30, 1999); see also e.g., Chambers v. TRM, 43 F.3d at 40.

8 See also, e.g., Budde v. HK Distrib. Co., 2000 WL 900204 at * 1;Gonzalez v. New York City Transit Auth., 2001 WL 492448 at * 7; Economou v. Caldera, 2000 WL 1844773 at * 13; Cobian v. New York City, 2000 WL 1782744 at * 8; Austin v. Ford Models, Inc., 2000 WL 1752966 at * 7; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at * 5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 654 (2d Cir. 1997).

9 The Court notes that Williams is not collaterally estopped by the OATH decision regarding his three day suspension. See Gonzalez v. New York City Transit Auth., 2001 WL 492448 at * 8-9 ( cases cited therein).

10 For additional cases authored by this Judge discussing the legal principles governing employment discrimination actions, in language substantially simil ar to that in this entire section of this Opinion,see, e.g., Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at * 10 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at * 11 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.); Austin v. Ford Models, Inc., 98 Civ. 3731, 2000 WL 1752966 at * 8 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 354 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.);Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 113-14 (S.D.N.Y. 1997) (Leisure, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *12 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); Burger v. Litton, 1996 WL 421449 at * 8 (S.D.N.Y. Apr. 25, 1996) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.).

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual' s race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). Williams alleges that the Sanitation Department violated Title VII by discriminating against him based on his race, color and religion, and by retaliating against him. (Cplt. ¶¶ 4, 7-8.)¹¹

11 It is not clear whether Williams intended to drop his discrimination claim based on religion. (Compare Cplt. ¶¶ 4, 7 (alleging discrimination based on race, color and religion) with Dkt. Nos. 14 16: Williams Aff. Amended Aff. ¶ 3 ("I believe at this time that I can prove my case based on race.").) In light of Williams'pro se status, and because the Sanitation Department has addressed all of Williams' discrimination claims in its papers and during discovery, the Court will briefly address Williams' religious discrimination claim as well as his race-color discrimination claims.

Under the familiar McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981); see, e.g., Reeves v. Sanderson Plumbing, 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S.Ct. 1307, 1309 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2746-47 (1993); McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973).¹² Establishment of a prima facie case "`in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's v. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747 (quoting Texas v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094).¹³

12 See also, e.g., Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998);Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

13 See also, e.g., Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997);Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc),cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998).

Once a plaintiff claiming employment discrimination establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of di scrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142-43, 120 S.Ct. at 2106; O'Connor v. Consolidated Coin, 517 U.S. at 310, 116 S.Ct. at 1309; St. Mary's v. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94; McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824.¹⁴ The burden on the defendant at this phase is one of production rather than persuasion.E.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142, 120 S.Ct. at 2106;St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 257, 101 S.Ct. at 1096.¹⁵

14 See also, e.g., Schnabel v. Abramson, 232 F.3d at 88; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d at 152; Stein v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d at 654;Fisher v. Vassar College, 104 F.3d at 1335; Chamber v. TRM, 43 F.3d at 38.

15 See also, e.g., Austin v. Ford Models, Inc., 149 F.3d at 153; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1335.

"Any legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case." Fisher v. Vassar College, 114 F.3d at 1335-36. "`It is important to note . . . that although the McDonnell Douglas presumption shifts the burden of production to the defendant, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."'" Fisher v. Vassar College, 114 F.3d at 1335 (quotingSt. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747; accord e.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142, 120 S.Ct. at 2106;

If the defendant articulates a non-discriminatory reason theMcDonnell-Douglas burden-shifting framework drops out of the picture.e.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142-43, 120 S.Ct. at 2106; St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2749; Texas v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94.¹⁶ "Moreover, although the presumption of discrimination `drops out of the picture' once the defendant meets the burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing, 530 U.S. at 143, 120 S.Ct. at 2106; (quoting Texas v. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10.)

16 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1336.

The Supreme Court recently clarified the standard at this stage of theMcDonnell-Douglass analysis:

[I]n St. Mary's Honor Center. . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff' s explanation of intentional discrimination."

In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .

Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "' treat discrimination differently from other ultimate questions of fact.'"

Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.

Reeves v. Sanderson Plumbing, 530 U.S. at 146-49, 120 S.Ct. at 2108-09 (emphasis added citations omitted).

After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:

In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that a [Title VII] claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no [Title VII] defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining 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 at 90 (emphasis added).¹⁷

17 See also, e.g., Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 469-70 (2d Cir. 2001); James v. New York Racing Ass'n, 233 F.3d 149, 156-57 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Gonzalez v. New York City Transit Auth., 2001 WL 492448 at * 12; Weiser v. Forest Pharm., Inc., 99 Civ. 1809, 2001 WL 293951 at * 7-8 (S.D.N.Y. Mar. 26, 2001); Tanay v. Saint Barnabas Hosp., 99 Civ. 9215, 2001 WL 262695 at * 4 (S.D.N.Y. Mar. 15, 2001); Bennett v. Watson, Wyatt Co., 136 F. Supp.2d 236, 245 (S.D.N.Y. 2001); Cobian v. New York City, 2000 WL 1782744 at * 13; Austin v. Ford Models, Inc., 2000 WL 1752966 at * 10;Connell v. Consolidated Edison Co., 109 F. Supp.2d 202, 207-08 (S.D.N.Y. 2000) (Chin, D.J.) ("The key is whether there is sufficient evidence in the record — whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence — to support an inference of discrimination.").

Indeed, the Second Circuit and the District Court decisions withi n the Circuit continue to grant summary judgment to defendants in appropriate cases at the final McDonnell Douglas step, even after Reeves.¹⁸

18 E.g., Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d at 470; James v. New York Racing Ass'n, 233 F.3d at 157; Gonzalez v. New York City Transit Auth., 2001 WL 492448 at * 12; Weiser v. Forest Pharm., Inc., 2001 WL 293951 at * 8; Tanay v. Saint Barnabas Hosp., 2001 WL 262695 at * 9;Bennett v. Watson, Wyatt Co., 136 F. Supp.2d at 249-50; Cobian v. New York City, 2000 WL 1782744 at * 13; Austin v. Ford Models, Inc., 2000 WL 1752966 at * 12-15; Trezza v. Dilenschneider Group, 99 Civ. 0185, 2000 WL 1702029 at * 5-6 (S.D.N.Y. Nov. 14, 2000); Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at * 8-11 (S.D.N.Y. Nov. 9, 2000);Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at * 8 (S.D.N.Y. Oct. 23, 2000); Cousins v. Howell Corp., 113 F. Supp.2d 262, 268-69 (D.Conn. 2000); Ekwegbalu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at * 3-4 (S.D.N.Y. Sept. 22, 2000); Connell v. Consolidated Edison Co., 109 F. Supp. at 208-11; Lenhoff v. Getty, 97 Civ. 9458, 2000 WL 977900 at *5-6 (S.D.N.Y. July 17, 2000); Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 n. 12 (S.D.N.Y. 2000).

The Court therefore turns to the McDonnell-Douglas analysis of Williams' claims and evidence.

III. THE SANITATION DEPARTMENT IS GRANTED SUMMARY JUDGMENT AS TO WILLIAMS' DISCRIMINATION CLAIMS BECAUSE HE HAS NOT SUBMITTED ANY EVIDENCE OF A HOSTILE WORK ENVIRONMENT OR DISPARATE TREATMENT BASED ON RACE-COLOR OR RELIGION

A plaintiff alleging discrimination may prevail by proving either that discrimination created a "hostile work environment" or resulted in "disparate treatment." The Court will analyze Williams' claims under both of these theories.

A. Hostile Work Environment

To establish a hostile work environment claim, Williams must allege the Sanitation Department's conduct was:

. . . "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405 (1986)) (internal brackets and quotation marks omitted). The conduct must be intimidating, hostile, or offensive, with discriminatory intimidation, ridicule, and insult permeating the workplace. See Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995). All of the circumstances must be considered; a reasonable person would have to find the environment hostile or abusive, and the victim must have subjectively so perceived it. See Harris v. Forklift Sys., 510 U.S. 17, 21-23, 114 S.Ct. 367, 370-71 (1993); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995).

Gallagher v. Delaney, 139 F.3d 338, 346-47 (2d Cir. 1998); accord Dayes v. Pace Univ., No. 00-7641, 2001 WL 99831 at * 1 (2d Cir. Feb. 5, 2001);Whidbee v. Garzarelli Food Speci alties, Inc., 223 F.3d 62, 69-71 (2d Cir. 2000); Howley v. Town of Stratford, 217 F.3d 141, 153-54 (2d Cir. 2000); Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 437-40 (2d Cir. 1999).¹⁹ "Conduct that is `merely offensive' and `not severe or pervasive enough to create an objectively hostile or abusive work environment'" is insufficient to establish a Title VII discrimination claim. Torres v. Pisano, 116 F.3d at 631; see also e.g., Dayes v. Pace Univ., 2000 WL 99831 at * 1 (Defendant's "comments and behavior, although boorish and inappropriate, simply do not rise to the level of behavior necessary for a jury reasonably to conclude that they were sufficiently severe of pervasive to alter the condition of [plaintiff]' s employment.").

19 See also, e.g., Torres v. Pisano, 116 F.3d 625, 630 (2d Cir.),cert. denied, 522 U.S. 997, 118 S.Ct. 563 (1997); Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1042 (2d Cir. 1993); Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 421 (S.D.N.Y.) (Wood, D.J. Peck M.J.), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

Isolated incidents of discriminatory comments or conduct is not sufficient to establish a hostile work environment. E.g., Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283 (1998) ("'simple teasing,' . . . offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'"); Harris v. Forklift Sys., Inc., 510 U.S. at 21, 114 S.Ct. at 370 ("'mere utterance of an . . . epithet which engenders offensive feelings in an employee,' . . . does not sufficiently affect the conditions of employment to implicate Title VII"); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) ("As a general matter, `isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive.'"); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("For racist comments, slurs, and jokes to constitute a hostile work environment, there must be `more than a few isolated incidents of racial enmity,' . . . meaning that '[i]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.'"); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987) ("to demonstrate a hostile work environment more than an episodic pattern of racial antipathy must be proven to obtain statutory relief"); Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986) ("To establish a hostile atmosphere . . . plaintiffs must prove more than a few isolated incidents of racial enmity."); Adeniji v. Administration for Children Servs., 43 F. Supp.2d at 421.²⁰

20 See also, e.g., Pomilio v. Wachtell Lipton Rosen Katz, 97 Civ. 2230, 1999 WL 9843 at * 6 (S.D.N.Y. Jan. 11, 1999) ("plaintiff's allegations . . . do not establish hostile work environment harassment. . . . [A]lthough plaintiff may have found some of her employers' alleged comments objectionable, those comments were `sufficiently isolated and discrete that a trier of fact could not reasonably conclude that they pervaded [plaintiff's] work environment.'"); Carter v. Cornell Univ., 976 F. Supp. 224, 232 (S.D.N.Y. 1997), aff'd, No. 97-9180, 159 F.3d 1345 (table), 1998 WL 537842 (2d Cir. July 9, 1998); Smith v. Planas, 975 F. Supp. 303, 309 (S.D.N.Y. 1997); O'Connor v. Viacom Inc., 93 Civ. 2399, 1996 WL 194299 at * 5 (S.D.N.Y. Apr. 23, 1996) ("three isolated remarks, the only proffered evidence of national origin discrimination, are insufficient to establish pretext," citing cases), aff'd mem., 104 F.3d 356 (2d Cir. 1996).

Williams claimed at his deposition that his supervisors are "racists" who "use the `N' word all the time," but he admitted that he never heard his supervisors use the "N" word (Williams Dep. at 106), and he failed to submit any other support for his statement that his supervisors use racial slurs. In fact, Williams testified:

Q. Do you think [a particular supervisor] treated you differently because of your race?

A. No. On all of that, I don't know as far as my race. I don't know.

Q. You don't know if they treated you differently based on your race?

A. I don't know why they did it. I know I was treated unfairly. They falsified documents on me. . . . I don't know if it was because of my race.

Q. But you don't have any reason to believe it was based on your race . . .?

A. No, I can't pinpoint that. I said that because . . . I am a black man in America. . . .

(Williams Dep. at 137.) Similarly, Williams testified that he doesn't have "any reason to believe" (id.) that he was discriminated against due to his religion:

Q. You allege in your complaint you feel you were discriminated against for your religion?

A. Well, like I said, I don't really know. I put those things down, race, color, religion. . . .

Q. Do you believe you were discriminated against at the Department of Sanitation because of your religion?

A. I don't know. I wasn't treated fairly. . . . I just put those things down because hey, we are supposed to be a minority in this country and we are. I don't think so, but that is how they look at it. . . . .

Q. . . . Earlier in the deposition you made a blanket statement that you don't know if you were treated differently. . . . Have you ever been treated differently at the Department of Sanitation with regard to your religious beliefs?

A. No.

Q. Work assignments?

A. Not that I remember.

Q. Can you think of any way you might have been treated differently because you are an Israelite that you could put your finger on?

A. No.

(Williams Dep. at 116-17, 146-147.)²¹

21 Williams alleges that certai n unnamed co-workers and supervisors call ed him a "black Jew" and asked him why he wears the Star of David. (Williams Dep. at 113-14, 117-19, 143.) A reasonable person may interpret these comments as an expression of curiosity rather than religious bias; in fact, Wi lliams concedes that fellow employees and supervisors were "just curious" about his religious beliefs. (Williams Dep. at 117, 143.) Further, these isolated comments, even if considered insulting or derogatory, were not "sufficiently severe or pervasive to alter the conditions of . . . employment." Harris v. Forklift. Sys., 510 U.S. at 21, 114 S.Ct. at 370; Danzer v. Norden Sys., 151 F.3d 50, 56 (2d Cir. 1995);Spence v. Maryland Cas. Co., 995 F.2d 1147, 1155 (2d Cir. 1993); see also cases cited on pages 28-30 above.

Despite his insistence that he has been treated unfairly, Williams has consistently admitted that he cannot prove discrimination based on race, color or religion, but that he just had a general sense that he was being targeted. (See Ex. G: Tr. at 10-11; Williams Dep. at 82, 105-06, 116, 120-21.) Williams conceded to the OEEO representative that he could not prove with concrete evidence "that the actions of this individual supervisor [were] premeditated [sic] by his racism or discriminatory." (Ex. G: Tr. at 10-11.) Williams acknowledged that the perceived ill-treatment was "not necessarily based on" discrimination, but was "[j]ust [him] being treated unfairly" (Williams Dep. at 82), and that he "do[esn't] really know. . . . [He just] put those things down, race, color, religion" (id. at 116). Williams conceded that supervisor Frank Lombardo "could have treated me differently because he didn't like me. I don't really know." (Williams Dep. at 120-21.) Regarding Supervisor Moricone, although Williams testified that he "despised" Moricone and felt Moricone was "[t]otally unprofessional," Williams conceded that he "can't prove he was a racist." (Williams Dep. at 105-06.) Williams summarized that "I just know I am going by really how I have been treated unfairly by these certain [supervisors]. As to why I was treated unfairly, I don't know." (Williams Dep. at 106.)

Of course, "unfair" treatment or personal animosity is not actionable, only discriminatory treatment is. See Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at 14 (S.D.N.Y. May 9, 2001) (Peck, M.J.) (unfair treatment due to a "grudge" is not actionable); Gorley v. MetroNorth, 99 Civ. 3240, 2000 WL 1876909 at * 7 (S.D.N.Y. Dec. 22, 2000) (" Even if [plaintiff' s supervisor] did harbor personal animosity against plaintiff . . . Title VII provides relief only for racial discrimination, not fickleness."); Terry v. United States, 98 Civ. 8249, 2000 WL 204522 at * 12 (S.D.N.Y. Feb. 18, 2000) ("the incidents plaintiff describes appear to be attributable to personal animosity, which is not actionable under federal discrimination statutes"); Gibson v. Brown, No. 97-CV-3026, 1999 WL 1129052 at *12 (E.D.N.Y. Oct. 19, 1999) ("`Personal animosity is not the equivalent of . . . discrimination and is not proscribed by Title VII. The plaintiff cannot turn a personal feud into a . . . discrimination case by accusation.'"), aff'd mem., 242 F.3d 365 (2d Cir. 2000); Baber v. Runyon, 97 Civ. 4798, 1998 WL 912065 at * 7 (S.D.N.Y. Dec. 30, 1998) ("Personal animosity is not actionable discrimination.").

Williams' naked belief that his race, color or religion may have had something to do with the disciplinary complaints filed against him is not sufficient to defeat summary judgment. See, e.g., Schwapp v. Town of Avon, 118 F.3d at 110 ("even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment"); Smith v. American Express Co., 853 F.2d 151, 155 (2d Cir. 1988) (summary judgment for employer because plaintiff's affidavit and memorandum "reveal nothing that would convince a factfinder that the reasons given by [the employer] for promoting [another employee] rather than [plaintiff] were a pretext for discrimination. Rather his allegations are conclusory and unsupported by evidence of any weight; they are insufficient to satisfy the requirements of Rule 56(e)."); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.) ("conclusory allegations of discrimination are insufficient to satisfy the requirements of Rule 56(e) . . . . To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases. Given the ease with which these suits may be brought and the energy and expense required to defend such actions, we believe the trial judge properly granted summary judgment."), cert. denied, 474 U.S. 829, 106 S.Ct. 91 (1985).²²

22 See also, e.g., Adeniji v. Administration for Children Servs., 43 F. Supp.2d at 423; Little v. New York, 96 Civ. 5132, 1998 WL 306545 at * 6 (E.D.N.Y. June 8, 1998) ("it is well settled that a plaintiff's speculations, generalities, and gut feelings, however genuine, when they are not supported by specific facts, do not allow for an inference of discrimination to be drawn . . . . Accordingly, a Title VII plaintiff cannot `defeat a motion for summary judgment by offering purely conclusory allegations of discrimination.' "), aff'd, 98-7979, 173 F.3d 845 (table), 1999 WL 220147 (2d Cir. Apr. 14, 1999); Robinson v. Metro-North Commuter R.R., 94 Civ. 7374, 95 Civ. 8594, 1998 WL 17742 at * 8 (S.D.N.Y. Jan. 16, 1998) (dismissing plaintiffs' claims of hostile working environment for failure to "make any specific allegations or provide any particularized admissible evidence to support [the] general claim"), aff'd, 191 F.3d 283 (2d Cir. 1999), cert. denied, 529 U.S. 1107, 120 S.Ct. 1959 (2000); Jugueta v. Perry, 95 Civ. 10303, 1997 WL 742535 at *6 (S.D.N.Y. Dec. 1, 1997) ("speculation does not constitute evidence sufficient to defeat a summary judgment motion"); Taylor v. Runyon, 97 Civ. 2425, 1997 WL 727488 at *5 (S.D.N.Y. Nov. 20, 1997) ("conclusory allegations are not sufficient to state a cause of action for disparate treatment based on race"); Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 114 (S.D.N.Y. 1997) (Peck, M.J.) ("Plaintiff's speculation and generalities (e.g., discrimination is self-evident), . . . is insufficient even to state a prima facie case. . . ."); Burrell v. Bentsen, 91 Civ. 2654, 1993 WL 535076 at *10 (S.D.N.Y. Dec. 21, 1993) ("plaintiff cannot satisfy his burden of proof by offers of speculative beliefs and gut feelings"), aff'd mem., 50 F.3d 3 (2d Cir. 1995);Richardson v. Newburgh Enlarged City Sch. Dist., 984 F. Supp. 735, 744 (S.D.N.Y. 1997) ("[T]he supposed mountain of racial resentment more closely resembles a molehill of non-racial, and possibly justifiable, annoyance . . . . Simply because (1) some [co-workers] had complaints about [plaintiff], and (2) [plaintiff] is African-American, does not impel the conclusion that (3) those [co-workers] had misgivings about [plaintiff] because [plaintiff] is African-American. This is the type of groundless speculation that summary judgment is designed to root out.").

Accordingly, the Sanitation Department's summary judgment motion is granted with respect to Williams' hostile environment discrimination claims.

B. Disparate Treatment

A disparate treatment claim is one in which the employer "simply treats some people less favorably than others because of their race, color [or] religion." Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 1705 (1993); see also e.g., Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 424 (S.D.N.Y.) (Wood, D.J. Peck M.J.), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

In order to establish a prima facie case of disparate treatment discrimination in violation of Title VII, a plaintiff must show that: (1) he is a member of a protected class; (2) he satisfactorily performed the duties of his position; (3) he was subject to an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).²³

23 See also, e.g., Tarstis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000); Carlton v. Mystic Transport., Inc., 202 F.3d 129, 134 (2d Cir.),cert. denied, 530 U.S. 1261, 120 S.Ct. 2718 (2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.), cert. denied, 525 U.S. 1001, 119 S.Ct. 511 (1998); Grady v. Affiliated Central, Inc., 130 F.3d 553, 559 (2d Cir. 1997), cert. denied, 525 U.S. 936, 119 S.Ct. 349 (1998); Rankin v. Wyatt Co., 125 F.3d 55, 63-64 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d 652, 653-54 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998);Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at * 13 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at * 15 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at * 11 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.); Campbell v. Alliance National Inc., 107 F. Supp.2d 234, 243 (S.D.N.Y. 2000); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 356-57 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.).

"The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Scaria v. Rubin, 117 F.3d at 654;accord, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47 (1993); Schnabel v. Abramson, 232 F.3d at 87.²⁴

24 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42; Austin v. Ford Models, Inc., 149 F.3d at 152; Rankin v. Wyatt Co., 125 F.3d at 64; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 32 (2d Cir. 1994); Fisher v. Vassar College, 114 F.3d at 1335; Gonzalez v. New York City Transit Auth., 2001 WL 492448 at * 13; Cobian v. New York City, 2000 WL 1782744 at * 16; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 357.

Williams satisfied the first prong because he is African-American and Hebrew. As to the second prong, while it is arguable that Williams did not perform his job satisfactorily in light of the complaints against him, looking at the evidence in the light most favorable to Williams, the Court concludes that Williams satisfied his burden on the second prong as well.

1. The Third Prong: Williams' Pending Disciplinary Charges Are Not Adverse Employment Actions

Regarding the pending disciplinary charges, the Sanitation Department contends that Williams' unadjudicated "disciplinary complaint[s], without more, [are] not . . . adverse action[s] because [Williams] has not yet, and may never, suffer any negative consequences." (Sanitation Dep't Br. at 10.) The Court agrees. Disciplinary charges are not "adverse actions" that could form the basis for a Title VII claim.²⁵ Rather, a plaintiff must establish that he has suffered a "`materially adverse change in the terms and conditions of employment.'" Torres v. Pisano, 116 F.3d 625, 640 (2d Cir.) (citation omitted), cert. denied, 522 U.S. 997, 118 S.Ct. 563 (1997); see also e.g., Spohn v. West, 2000 WL 1459981 at *5.

25 See, e.g., Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) ("not every unpleasant matter short of [discharge or demotion] creates a cause of action."); Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir. 1996) (employee cannot be adversely affected by charges of wrongdoing in the workpl ace unless the charges are deci ded against him); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) ("While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action" under Title VII.); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at * 20-22 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.) ( cases cited therein); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at * 15, * 16 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.); Spohn v. West, 00 Civ. 0735, 2000 WL 1459981 at * 5 (S.D.N.Y. Oct. 2, 2000) (Peck, M.J.);NiCastro v. Runyon, 60 F. Supp.2d 181, 186 (S.D.N.Y. 1999) ("many of the actions complained of by plaintiff, such as scrutiny from his supervisors that he deemed excessive [and] requiring documentation for sick leave . . . do not constitute `adverse employment actions' and so cannot be the basis of any claim of Title VII retaliation").

Williams has offered no evidence that he was adversely affected by any of the pending disciplinary charges. Accordingly, the Sanitation Department is granted summary judgment on Williams' claims with respect to the November 17 26, 1999, December 31, 1999, February 8, 2000 and October 14, 2000 disciplinary charges that did not result in any penalties (such as suspension and loss of pay) to Williams.

2. The Fourth Prong: Williams has not Presented Evidence that His Three Day Suspension Was Based on Illegal Discrimination

The Sanitation Department does not dispute that Williams' three-day suspension constituted an adverse acti on. (Sanitation Dep't Br. at 14-15.) The Sanitation Department instead argues that Williams has not presented "evidence of discriminatory intent" (Sanitation Dep't Br. at 8) to satisfy the fourth prong of the prima facie test.

First, Williams himself stated that he has no evidence of discrimination. (See pages 9, 30 — 32 above.) Williams' own allegations support granting of summary judgment to the Sanitation Department. See, e.g., Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *14 (S.D.N.Y. May 9, 2001) (Peck, M.J.) (Plaintiff's "own allegations . . . that any disparate treatment was due, not to discrimination, but to personal and professional animosity," support granting of summary judgment for defendant); Wheeler v. Corporation Counsel, 93 Civ. 5184, 2000 WL 1760947 at *9 (S.D.N.Y. Nov. 30, 2000) (summary judgment granted for defendant in ADA case where "[p]laintiff's own testimony regarding [his alleged disability] is telling," since plaintiff asserted he had "been performing all [his] duties above the norm").

Further, Williams did not satisfy his burden on the fourth prong, because he failed to show that he was treated differently than persons outside the relevant protected classes. Williams has not shown that he was singled out to be disciplined while employees of other races (or religions) performed the same infractions with impunity. Williams cannot prove, and has admitted that he cannot prove (in fact, he does not even allege), that employees outside the Title VII protected class were treated differently than those within the protected class.²⁶ See, e.g., Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 427 fn. 7 (S.D.N.Y.) (Wood D.J. Peck, D.J.) (although plaintiff was assigned different duties that his co-workers, all workers assigned to plaintiff's unit were African, so plaintiff "cannot claim that employees outside the Title VII protected class were treated differently than those within the protected class."), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999); Harmon v. Runyon, 96 Civ. 6080, 1997 WL 786383 at * 5 (S.D.N Y Dec. 19, 1997) (plaintiff failed to show she suffered disparate treatment when she was assigned different tasks from her co-workers, who were of the same race as plaintiff); Smith v. Planas, 975 F. Supp. 303, 308 (S.D.N Y 1997) ("Five of the seven individuals identified by Plaintiff as having received higher-paying assignments were black — members of Plaintiff' s protected class. As such, Plaintiff has failed to make out a prima facie case of race discrimination because he cannot show that the adverse employment action taken against him occurred in circumstances giving rise to an inference of race discrimination.").²⁷

26 In fact, when asked if supervisors "were only disrespectful to [Williams] and not other workers" Williams testified "I wouldn't know . . . I don't remember." (Williams Dep. at 55.)

27 See also, e.g., Samuels v. New York State Dep't of Correctional Servs., 94 Civ. 8645, 1997 WL 253209 at * 5 (S.D.N.Y. May 14, 1997) (summary judgment for defendants because "[t]wo of the four promotions of which [plaintiff] complains were, in fact, promotions of black males — members of the protected class of which plaintiff is a member. As such, plaintiff has failed to make out a prima facie case of race discrimination, because she cannot show that the adverse employment action taken against her — defendants' delay in promoting her — occurred in circumstances giving rise to an inference of race discrimination."); Thornton v. Simpson Thacher Bartlett, 83 Civ. 8409, 1986 WL 6012 at * 4 (S.D.N.Y. May 21, 1986) (directed verdict for defendant because "[p]laintiff relies on the contention that two white employees . . . had equally poor attendance records, but were not placed on probation. Plaintiff' s testimony shows, however, that two other black employees with allegedly poor records were also not placed on probation. The most this establishes, even in the light most favorable to the plaintiff, is that she was treated differently from all other employees, both white and black."), aff'd mem., 833 F.2d 1003 (2d Cir. 1986).

Williams has failed to establish even a prima facie case of disparate treatment discrimination.

3. Even if Williams Had Stated a Prima Facie Case, the Sanitation Department Stated a Legitimate Non-Discriminatory Reason for its Actions and Williams Failed to Show that the Sanitation Department's Reasons were Pretextual

Even if Williams had met the minimal requirements for establishing a prima facie case, the burden would shift to the Sanitation Department to articulate a legitimate, non-discriminatory reason for Williams' three-day suspension.²⁸ (See cases cited at pages 23-25 above.) An employee's failure to abide by regulations requiring that he remain available by phone and at home during sick leave is a legitimate, non-discriminatory reason for suspension, as long as such discipline is uniformly applied. See, e.g., Sergilus v. Covenant House Under 21, 96 Civ. 6210, 1999 WL 717274 at * 1 (S.D.N.Y. Sept. 15, 1999) ("Theft is a legitimate, nondiscriminatory reason to discharge an employee."); Fierro v. Saks Fifth Avenue, 13 F. Supp.2d 481, 489 (S.D.N.Y. 1998) (summary judgment for employer where plaintiff failed to show discharge for minor theft was a pretext for discrimination).

28 Williams' own allegations during his OEEO interview provide legitimate non-discriminatory explanations for the work incidents about which he complains involving Supervisor Aguayo:

Q. Have you ever had any problems with Supervisor Aguayo before or frequently?

A. No. Not really . . . . Actually, he's a very nice guy, but lately he's been trying to make a name for himself as being tough. He has a reputation of being soft, but he's trying to change that reputation on my expense.

(Ex. G: Tr. at 2, emphasis added.)

This Court may not second-guess an employer's non-discriminatory business decisions, regardless of their wisdom. See, e.g., Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001) (courts should not act as "super personnel departments" that second-guess employer's business judgments); Tarshis v. Riese Org., 211 F.3d 30, 37 (2d Cir. 2000) ("Title VII . . . [does] not grant courts authority to second-guess the wisdom of corporate business decisions. . . ."); Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991) ("Courts may not sit as super personnel departments, assessing the merits — or even the rationality — of employers' nondiscriminatory business decisions."), cert. denied, 504 U.S. 985, 112 S.Ct. 2965 (1992); Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) ("[I]t is not the function of a fact-finder to second-guess business decisions . . . [unless] the employer's `business decision' was so lacking in merit as to call into question its genui neness."); Scaria v. Rubin, 94 Civ. 333, 1996 WL 389250 at * 8 (S.D.N.Y. July 11, 1996) (Peck, M.J.) ("an employer has discretion even to make a bad business decision . . ., so long as that decision is not motivated by discrimination"), aff'd, 117 F.3d 652 (2d Cir. 1997).²⁹

29 See also, e.g., Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *16 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at * 12 (S.D.N.Y. Nov. 29, 2000); Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *9, 10 (S.D.N.Y. Nov. 9, 2000) ("[A]bsent evidence of discrimination, it is not the province of the Court to sit as a super-personnel department that reexamines an enti ty's business decisions."); Ekwegbalu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at * 3 (S.D.N.Y. Sept. 22, 2000) ("This is not a suit for wrongful discharge, but of employment discrimination. The jury cannot substitute its business judgment for that of the employer."); Lenhoff v. Getty, 97 Civ. 9458, 2000 WL 977900 at * 6 (S.D.N.Y. July 17, 2000) ("even if [defendant's] decision to fire her was `petty, mean [or] wrong,' . . . that does not make it illegal"); Williams v. Salvation Army, 108 F. Supp.2d 303, 311 (S.D.N.Y. 2000); Berhanu v. New York State Ins. Fund, 91 Civ. 4956, 1999 WL 813437 at * 13 (S.D.N.Y. Oct. 8, 1999), aff'd, No. 99-9436, 2001 WL 682476 (table) (2d Cir. June 18, 2001); Cardozo v. Healthfirst, 98 Civ. 3050, 1999 WL 782546 at * 6 (S.D.N.Y. Mar. 29, 1999) ("Defendant offers evidence that the decision to terminate Plaintiff was made for several business related (i.e., non-discriminatory) reasons. `It is not the function of this Court to second-guess an employer's business decisions.'"); Roman v. Cornell Univ., 53 F. Supp.2d 223, 241 (N.D.N.Y. 1999); Mauro v. Southern New England Telecomm., 46 F. Supp.2d 181, 185 (D.Conn. 1999), aff'd, 208 F.3d 284 (2d Cir. 2000); Walsh v. United Cable Tech. Servs. Corps. Telecomm., Inc., 46 F. Supp.2d 170, 173 (D.Conn.), aff'd, No. 99-7764, 201 F.3d 434 (table), 1999 WL 1295333 (2d Cir. Dec. 20, 1999); Ruane v. Continental Cas. Co., 96 Civ. 7153, 1998 WL 292103 at * 11 (S.D.N.Y. June 3, 1998) ("Federal courts . . . do not sit as `roving commission[s] to review business judgment.'");Hansen v. Dean Witter Reynolds, Inc., 887 F. Supp. 669, 673 (S.D.N Y 1995); Gilman v. Runyon, 865 F. Supp. 188, 193 (S.D.N.Y. 1994) (The fact finder should not assess "whether the employer's decision was erroneous or even rational, so long as the employer's actions were not taken for a discriminatory reason."); Lamb v. Citibank, N.A., 93 Civ. 2358, 1994 WL 497275 at * 6 (S.D.N.Y. Sept. 12, 1994) ("The court should ' refrain from intruding into an employer's policy apparatus or second-guessing a business's decisionmaking process.'"), aff'd mem., 122 F.3d 1056 (2d Cir. 1995), cert. denied, 517 U.S. 1188, 116 S.Ct. 1675 (1996).

The Sanitation Department's articulated reasons for Williams' suspension are sufficient to meet its burden of production at the second McDonnell Douglas step.

Once the defendant carries its burden of production by articulating legitimate, non-discriminatory reasons for its actions, as the Sanitation Department has done here, "[t]he plaintiff then has `the full and fair opportunity to demonstrate, . . . that the proffered reason was not the true reason for the employment decision,'" but was in fact a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 2747 (1993) (citation omitted).³⁰ "[T]he plaintiff, in order to defeat summary judgment, must present evidence sufficient to allow a rational factfinder to infer that the employer was actually motivated in whole or in part by . . . discrimination." Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2d Cir. 1997), cert. denied, 119 S.Ct. 349 (1998).³¹ "In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury,' [i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff' s explanation of intentional discrimination.'" Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citation omitted, alterations in original); accord, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *12.

30 Accord, e.g., Gonzalez v. New York City Transit Auth., 2001 WL 492448 at *16; Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *26 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *12 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.); Austin v. Ford Models, Inc., 2000 WL 1752966 at * 12; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 358 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.);Scaria v. Rubin, 1996 WL 389250 at *9.

31 Accord, e.g., Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.), cert. denied, 119 S.Ct. 511 (1998); Gonzalez v. New York City Transit Auth., 2001 WL 492448 at * 16; Austin v. Ford Models, Inc., 2000 WL 1752966 at * 12; Economou v. Caldera, 2000 WL 1844773 at * 13; Cobian v. New York City, 2000 WL 1782744 at * 8; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 358; see, e.g., St. Mary's v. Hicks, 509 U.S. at 515, 113 S.Ct. at 2752 (a proffered "reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason"); Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994); see also cases cited at pages 18-20 above.

Williams does not dispute that his failure to remain available by phone and at home during sick leave was a prohibited and punishable act. While Williams alleged conclusorily that he believed other employees who committed the same offenses were not disciplined as harshly (see pages 10-11), Williams failed to submit any evidence to support this allegation. Williams did not allege that even one other non-minority sanitation worker was treated more favorably than he was. Instead, Williams complained that he was treated "unfairly" and targeted while other minority workers were not. "Conclusory allegations made by the Plaintiff of (alleged) discriminatory conduct are insufficient to avoid summary judgment." Cardozo v. Healthfirst, 98 Civ. 3050, 1999 WL 782546 at * 8 (2d Cir. Mar. 29, 1999).³² Thus, Williams has not submitted any evidence of disparate treatment.

32 See also, e.g., Budde v. HK Distrib. Co., 99 Civ. 9949, 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.) ("[C]onclusory allegations of discrimination are insufficient to satisfy the requirements of Rule 56(e). . . . To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases. Given the ease with which these suits may be brought and the energy and expense required to defend such actions, we believe the trial judge properly granted summary judgment."), cert. denied, 474 U.S. 829, 106 S.Ct. 91, (1985); Gonzalez v. New York City Transit Auth., 2001 WL 492448 at *16; Austin v. Ford Models, Inc., 2000 WL 1752966 at * 13; Faldetta v. Lockheed Martin Corp., 2000 WL 1682759 at * 11; Alston v. New York City Transit Auth., 97 Civ. 1080, 1999 WL 540442 at * 7 (S.D.N.Y. July 26, 1999) ("`The most probative means of proving pretextual discharge is to demonstrate that similarly situated . . . employees were treated differently' . . . [but] mere conclusory allegations of discrimination are insufficient to meet this burden."), aff'd mem., 208 F.3d 202 (2d Cir. 2000); Adeniji v. Administration for Children Servs., 43 F. Supp.2d at 423 (citing cases).

The Second Circuit has "h[e]ld that the Supreme Court's decision inReeves clearly mandates a case-by-case approach, with a [district] court examining 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. AbramsonE, 232 F.3d 83, 90 (2d Cir. 2000); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48, 120 S.Ct. 2097, 2108-09 (2000). Here, there were no discriminatory remarks to or about Williams. See, e.g., Grady v. Affiliated Cent., Inc., 130 F.3d 553, 561 (2d Cir. 1997) (affirming summary judgment for defendants where plaintiff was unable to point to any statement by anyone that was discriminatory in nature), cert. denied, 525 U.S. 936, 119 S.Ct. 349 (1998); Austin v. Ford Models, Inc., 2000 WL 1752966 at * 14 (citing cases). Williams' prima facie case is weak (if not non-existent); the Sanitation Department's explanation of its conduct is strong; and Williams' evidence simply does not create an inference of discrimination sufficient to defeat defendant's summary judgment motion.E.g., Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir.) (Plaintiff's "very weak prima facie case, combined with an at best highly dubious showing of pretext, that in itself does not implicate discrimination, is simply not enough to support the jury' s conclusion that he was fired because of his age."), cert. denied, 525 U.S. 1001, 119 S.Ct. 511 (1998).³³

33 See also, e.g., Gonzalez v. New York City Transit Auth., 2001 WL 492448 at *17; Austin v. Ford Models, Inc., 2000 WL 1752966 at *15;Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at * 11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at * 9 (S.D.N.Y. Oct. 23, 2000); Simmons v. ATT, Inc., 96 Civ. 2844, 1998 WL 751659 at *8 (S.D.N.Y. Oct. 28, 1998), aff'd mem., 182 F.3d 901 (2d Cir. 1999).

As the Court stated in granting summary judgment for defendants in a Title VII case:

To invoke the protections of Title VII, an employee must have been subjected to discrimination. A plaintiff who could have been subjected to discrimination by virtue of being a member of a protected class, but was not, could reap an unwarranted windfall if her Title VII claim survives summary judgment in the absence of any proof of discrimination. Title VII, an important statute, must not be exploited and diluted as a result of misuse and misapplication by disgruntled employees who happen to be members of a protected class.

Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 (S.D.N.Y. 2000);accord, e.g., Gonzalez v. New York City Transit Auth., 2001 WL 492448 at * 18; Austin v. Ford Models, Inc., 2000 WL 1752966 at *15. Accordingly, the Court grants summary judgment for the Sanitation Department on Williams' discrimination claims.

IV. WILLIAMS HAS NOT ESTABLISHED A PRIMA FACIE CASE OF RETALIATION AND THE SANITATION DEPARTMENT IS THEREFORE GRANTED SUMMARY JUDGMENT ON WILLIAMS' TITLE VII RETALIATION CLAIM

In his complaint, Williams alleges that the Sanitation Department retaliated against him as a result of his complaints to his union, the OEEO and the EEOC. (Cplt. ¶¶ 4, 8; Williams Dep. at 170-72.)

Title VII retaliation claims also are governed by the McDonnell Douglas burden-shifting analysis. See, e.g., Sotolongo v. New York City T.A., No. 99-9195, 216 F.3d 1073 (table), 2000 WL 777958 at *2-3 (2d Cir. June 15, 2000); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at * 18 (S.D.N.Y. May 9, 2000) (Peck, M.J.); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *25 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.);Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 428 (S.D.N.Y.) (Wood, D.J. Peck, M.J.), aff'd., No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

"In order to make out a prima facie case of retaliation, a plaintiff must show by a preponderance of the evidence (i) participation in a protected activi ty known to the defendant; (ii) an employment action disadvantaging the plaintiff; and (iii) a causal connection between the protected activity and the adverse employment action." Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995).³⁴

34 Accord, e.g., Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996); Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993);Kotcher v. Rosa Sullivan Appli ance Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992); see also e.g., Gonzalez v. New York City Transit Auth., 2001 WL 492448 at * 18; Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at * 16 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.) ( cases cited therein); Adeniji v. Administration for Children Servs., 43 F. Supp.2d at 419.

The Sanitation Department argues that Williams has not established a prima facie case of retaliation because, inter alia, "plaintiff cannot establish a causal nexus between his OEEO and EEOC complaints and the suspension." (Sanitation Dep't Br. at 13-14.) Williams' allegations that his suspension is a result of retaliation is pure speculation. Williams complained to the OEEO in April and May 2000, and filed a complaint with the EEOC on July 10, 2000. The OATH decision recommending a three day suspension was issued December 13, 2000, was adopted December 20, 2000, and was effected February, 2001. (See pages 3-4 above.) However, other than the sequence of events, Williams has failed to establish a causal connection between his protected activities (complaints to the OEEO and EEOC) and his suspension. Williams testified as follows:

Q. You stated . . . in your complaint you have also been retaliated against and you said that a couple of times. For what do you believe you are being retaliated for? What did you do?

A. Calling the union and the union getting in touch with the district. Also the incident with [chief] Ruffino when he came up to me and said "Is there a problem?" and he said, "there must be a problem. You called the union." I know the union is getting on them. Every time I call, they retal iate on me. So they are like "Screw him. Any little thing he does, let's get him." And because of the law suit. . . . .

Q. How are they retaliating against you now after this lawsuit started?

A. . . . I mean, after I filed a Notice of Claim, they knew. Well, they knew when I was calling up the union left and right. They started retaliating against me. If I saw something I didn't like or a supervisor did something to me I didn't like, I would call up the union. I started going further with the EEO. . . . They knew I was going to the EEOC. Then they definitely knew I [am] going forward with these things. Before I would complain to the union and nothing would happen. Now, I was going through the channels and taking it to the max.

Q. So, you think the disciplinary complaints are their way of retaliating against you?

A. Basically that is it. And suspending me. . . . They offered me one day. And when I take it to OATH, instead of one day it' s three days. Why is it more? Because I am fighting it?

(Williams Dep. at 170-72, emphasis added.)

The only evidence Williams submitted to prove retaliation is the timing of events, which is insufficient here, where the OATH decision came months after the protected activity. See, e.g., Adeniji v. Administration for Children Servs., 43 F. Supp.2d at 433 ( cases cited therein). Even assuming that Williams established a prima facie retaliation claim, Williams would still have to show that the Sanitation Department's reasons for suspending him for three days were pretextual, and he has failed to do so. (See discussion at pages 41-45 above).

Therefore, summary judgment is granted in favor of the Sanitation Department on Williams' retaliation claim.

CONCLUSION

For the reasons set forth above, the Court grants summary judgment to defendant Sanitation Department dismissing the complaint in its entirety.

SO ORDERED.