Opinion
No. 03 Civ. 1299 (VM).
June 15, 2004
DECISION AND ORDER
Plaintiff Almus Wilson ("Wilson") brings this action against his former employers, defendants Grand Central Partnership ("GCP") and 34th Street Partnership ("34th Street" and together with GCP, "Defendants"), alleging that they engaged in unlawful racial discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq and the New York State Human Rights Law ("NYSHRL"). Wilson further alleges that the Defendants retaliated against him in violation of Title VII by denying him annual raises and informing co-workers of a complaint he filed with the New York State Division of Human Rights ("SDHR"). Finally, Wilson claims that Defendants created a hostile work environment by placing him in constant fear and anxiety. Subsequently, Wilson discontinued his claims against GCP with prejudice. He also withdrew his NYSHRL claim and retaliation claim with respect to the denial of pay raise against 34th Street. Defendant 34th Street has moved for summary judgment on Wilson's remaining Title VII claim. For the reasons discussed below, the motion is granted.
I. BACKGROUND
The factual summary that follows derives from the following documents: Complaint, Wilson v. Grand Central Partnership, Inc., No. 03 CV 1299, dated Feb. 25, 2003 ("Compl."); Answer of Defendant 34th Street Partnership, Inc., dated Apr. 24, 2003; Memorandum of Law in Support of Motion by Defendant 34th Street Partnership for Summary Judgment on all claims made by Plaintiff, dated Mar. 22, 2004 with accompanying exhibits ("Def. Mem."); and Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated Apr. 26, 2004 ("Pl. Mem."). Except where specifically referenced, no further citation to these sources will be made.
A. THE RELATIONSHIP BETWEEN THE PARTIES
Defendant 34th Street provides security services for the 34th Street Business Improvement District ("BID") in Manhattan to complement those provided by the City of New York. A staff of approximately 34 uniformed 34th Street security officers patrol the BID from 6:30 or 7:00 a.m. to midnight or slightly later in two shifts. Two security supervisors are on duty during each shift. Security supervisors have primarily administrative and supervisory responsibilities. Among other duties, supervisors inspect the security officers at roll call prior to their patrol to ensure that all officers are properly wearing safety equipment, and they observe and manage officers on patrol. Although security officers do not carry firearms, they are required to wear bullet-proof vests while on duty.
GCP and 34th Street are separate legal entities, though they shared common executive management prior to 1999. Both corporations provide similar security services which aim to deter crime, disorderly conduct, unlawful street conditions, and damage to property.
Wilson, who is African-American, was hired as a security supervisor by GCP on July 5, 1995. In April 1998, Wilson was laterally transferred to 34th Street. Other security supervisors were transferred between 34th Street and GCP before and after Wilson's transfer to 34th Street, although those transferred often returned to their original positions. Wilson was never transferred back to his position at GCP, though his duties and salary remained unchanged after the transfer. At the time of his transfer, three of the six security supervisors at 34th Street were black.
Wilson claims that he was transferred without explanation in an effort to eliminate the only African-American security supervisor at GCP. In response, 34th Street claims that Wilson was transferred because he was ineffective at GCP and management sought to give him "a fair shot at being a supervisor" through the transfer to 34th Street "where the security officers were not aware of his shortcomings." (Transcript of Deposition, Richard Dillon, Feb. 5, 2004, at 43:9-13.)
B. PAY RAISES AND SICK LEAVE
The record indicates that 34th Street had a pay structure for security supervisors that ordinarily provided pay raises on a supervisor's anniversary date. Wilson claims that he was told such raises were automatic. Wilson was denied a raise each year during his tenure with the Defendants except in 1996. Wilson claims that after being denied a raise in 1998, he inquired of Michael Gerhold ("Gerhold"), the former Chief of Security, as to why he was denied the raise. Wilson claims that Gerhold responded that he "put in" for Wilson's raise, but higher management denied it with no further explanation. According to Wilson, upon his further insistence, Gerhold responded, "[s]ue the son of a bitches, that's all I'm going to tell you." (Wilson Dep. at 92:20-22.)
In his deposition testimony, Wilson states, "[Mr. Panza, Wilson's supervisor at GCP,] stated that you have automatic pay raises per year, the best of my knowledge, automatic, I'm unclear a little bit, but he did say something relative to the pay raises." (Transcript of Deposition, Almus Wilson, Jan. 27, 2004 ("Wilson Dep.") at 99:19-23.)
Gerhold has since passed away without confirming this conversation. (See Wilson Dep. at 90:18-25; 91:2-9.)
In response, 34th Street argues that Wilson was denied pay raises in 1988 and 1999 due to absenteeism. The record reflects that in 1998, Wilson was absent for 17 days on paid sick leave and leave without pay. In the ten months of 1999 that Wilson worked for 34th Street, he was absent for 18 days on paid sick leave and leave without pay. From the start of his employment in 1995 to his resignation in 1999, Wilson accumulated 57 sick days, whereas the next highest supervisor during that time period used only 24 sick days. (See Def. Mem. at Exs. 12 17.) In 1998, two other black supervisors, who were absent three days each in 1998, received pay increases. A white supervisor, Edmund Brodigan ("Brodigan"), who was absent nine days in 1998, was denied a pay raise due to absenteeism. While denying knowledge or information as to the attendance records the Defendants produced, Wilson does not challenge their accuracy, particularly as to the records of his absences.
Wilson claims that upon being hired by GCP, all security supervisors were given unlimited sick leave. Wilson notes that 34th Street instituted the eight-day per year sick leave policy in July 1998 after he had returned from an eight-day absence, which 34th Street claims to have been unauthorized. Wilson asserts that after this time, 34th Street gave him only eight days of sick leave, while white supervisors received many more. The record indicates that other than Brodigan's nine sick days in 1998, no other supervisor took more than three sick days in 1998 or 1999. Wilson was unable to identify any other security supervisors who were paid for more than eight days of sick leave per year.
Wilson attests: "I knew nothing about [the eight day policy], with the exception to when I had to go south to get my mother-in-law who had broken her leg in three places [in July 1998], and I had spoken to Mr. Dillon, and I think when I came back, my impression was that I had unlimited sick. When I was hired at Grand Central, it was unlimited sick, and after I came back from picking her up and bringing her up here to live with me, I think that he had instituted this eight day policy." (Wilson Dep. at 74:10-19.)
C. DISCIPLINARY ACTIONS
On July 26, 1999, Gerhold conducted a "counseling session" with Wilson after a security officer under his supervision was observed on patrol without his bullet-proof vest. The written memorandum documenting this session makes clear that among Wilson's duties was the inspection of all squad members at roll-call and during their tour of duty to assure that they were properly uniformed and equipped. In Wilson's protest memorandum, written in response to the counseling session memorandum, he insisted that he adequately inspected the squad on the date in question and all were in proper uniform. The security officer who removed his vest claims that no roll-call had taken place that day.
A second incident occurred on September 20, 1999 when Gerhold and his assistant, Francis Foley ("Foley"), could not make radio contact with Wilson for several hours. Wilson alleges that he was in a "dead zone" where radios are not functional. In a second disciplinary memorandum written by Foley to Gerhold, Foley claims that upon confronting Wilson about the incident, Wilson was loud and defensive in his responses and he failed to account plausibly for his inaccessibility. Wilson maintains that after the radio incident he knew that they were going to try to terminate him and that this incident was what really drove him to leave 34th Street. The record reflects that shortly after this second incident, Wilson met with Dick Barnett ("Barnett"), an associate of Wilson, about the need to find another job "immediately, because [he] felt very threatened that [he] wouldn't have job soon." (Wilson Dep. at 16:15-16.) Barnett arranged an interview for Wilson at the New York City Board of Education, where he was subsequently hired as a dean of students.
Wilson makes note of a separate incident, in which he was not involved, where a white supervisor, James Todd ("Todd"), was not disciplined when a security officer under his supervision assaulted another officer. In response, 34th Street claims that Todd was not on duty at the time of this incident, and therefore, could not be held responsible. Wilson does not contest that Todd was not on duty when the alleged incident occurred.
D. WILSON'S SDHR COMPLAINT AND RESIGNATION
On or about October 15, 1999, Wilson filed a complaint with the SDHR against 34th Street, GCP, and certain individual managers. Two weeks later, on November 1, 1999, Wilson submitted his resignation, effective immediately. At or about the same time as his resignation, Wilson filed an amendment to his SDHR complaint, alleging retaliation and denial of a pay raise. In the amended complaint, Wilson claimed that 34th Street had inappropriately disclosed and displayed his SDHR complaint to colleagues, including his partner, Vincent Conroy ("Conroy"). Wilson alleges that Conroy ceased all communication with him, creating a hostile and unsafe workplace. Despite his claim that the radio incident was the real impetus for his resignation, Wilson alleges that he was forced to resign his position for health and safety reasons after the SDHR complaint was disclosed to his colleagues because the lack of communication with his co-workers jeopardized the close relationship of trust that is required to maintain safety on the job. Conroy denies knowledge of Wilson's SDHR complaint prior to Wilson's resignation.
On October 29, 2002, the SDHR dismissed Wilson's complaint. The SDHR notified Wilson that he could appeal its decision in New York State Supreme Court by filing a petition within 60 days of the decision. Wilson, however, elected not to appeal. Wilson filed this action on February 26, 2003. Pending before the Court is 34th Street's motion for summary judgment on Wilson's outstanding Title VII claim.
II. DISCUSSION
A. JURISDICTION
Title VII provides that a claim filed with the United States Equal Employment Opportunity Commission ("EEOC") involving "an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency . . . shall be filed . . . within three hundred days after the alleged unlawful employment practice occurred, . . ." 42 U.S.C. § 2000e-5(e)(1). Thus, "events that occurred prior to 300 calendar days before the filing of an EEOC complaint are time-barred." Allah v. City of N.Y. Dep't of Parks Recreation., 162 F. Supp.2d 270, 273 (S.D.N.Y. 2001) (quotingTewksbury v. Ottaway Newspapers, Inc., 192 F.3d 322, 327-28 (2d Cir. 1999)). For purposes of Title VII's filing requirement, the term "practice" constitutes "a discrete act or single `occurrence,' even when it has a connection to other acts."National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 (2002). A discrete discriminatory act is not actionable if time-barred, even when it is related to acts alleged in timely-filed charges. See id. at 113. Hostile work environment claims, however, are different in kind from discrete acts, as their very nature involves repeated conduct, and acts occurring outside the three hundred day time-bar may still form part of a hostile environment claim. See id. at 115.
On or about October 15, 1999, Wilson filed his complaint with both the SDHR and the EEOC. Thus, with regards to Wilson's Title VII and retaliation claims, the Court will not consider any discriminatory acts alleged to have occurred three hundred days before this date, or December 19, 1998. Those acts include Wilson's transfer to 34th Street from GCP and 34th Street's denial of a pay raise to Wilson in 1998. The Court, however, will consider these incidents only to the extent they are pertinent to Wilson's hostile work environment claim.
B. SUMMARY JUDGMENT STANDARD
The Court may grant summary judgment only "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). The Court must first look to the substantive law of the action to determine which facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Even if the parties dispute material facts, summary judgment will be granted unless the dispute is "genuine," i.e., "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 249.
The moving party bears the initial burden of demonstrating that the evidence contained in the record fails to raise a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After such a showing, the non-moving party must respond with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). To this end, "[t]he non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). In other words, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted).
Throughout this inquiry, the Court must view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. See Schneider v. Feinberg, 345 F.3d 135, 144 (2d Cir. 2003). The Court's role is to determine whether there are triable issues of fact and not to resolve such disputed matters. See Anderson, 477 U.S. at 249;Gibson v. American Broad. Cos., 892 F.2d 1128, 1132 (2d Cir. 1989).
C. WILSON'S TITLE VII CLAIM
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). Title VII provides the basis for Wilson's claims of racial discrimination, retaliation, and hostile work environment.
Where, as in this case, the evidence of the alleged unlawful discrimination is only circumstantial, the sufficiency of a Title VII discrimination claim is assessed under the three-step burden-shifting analysis enunciated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973). Under this framework, the plaintiff must first make out a prima facie case of discrimination. See id. at 802; see also Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001). A plaintiff makes out a prima facie case by showing that: (1) he is a member of a protected class; (2) he is qualified for the position in question; (3) he suffered an adverse employment action; and (4) the surrounding circumstances give rise to an inference of discrimination based on the plaintiff's membership in the protected class. See Mario v. P C Food Mkts., Inc., 313 F.3d 758, 767 (2d Cir. 2002); see also Thomas v. Westchester County Health Care Corp., 232 F. Supp.2d 273, 278 (S.D.N.Y. 2002). The plaintiff's burden in establishing a prima facie case is "de minimis." Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 380-81 (2d Cir. 2001) (citations omitted); see also McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001).
If the plaintiff makes out a prima facie case, there is a presumption of discrimination and the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); McDonnell Douglas, 411 U.S. at 802. If the defendant meets this burden, the presumption of discrimination is rebutted and the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the defendant's proffered reasons were merely a pretext for discrimination and that its conduct under the circumstances gives rise to an inference of unlawful discrimination. See Burdine, 450 U.S. at 253; Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001).
Through all the steps of this assessment, the evidence a plaintiff presents in opposing summary judgment must be sufficient to demonstrate the discriminatory intent underlying the defendant's action. Thus, "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.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Burdine, 450 U.S. at 253) (italics in original).
The Court considers the evidence in the record within theMcDonnell Douglas framework.
D. WILSON'S PRIMA FACIE CASE
There is no dispute between the parties that Wilson has satisfied the first and second elements of his prima facie case,i.e., that he is a member of a protected class and was qualified for the position he held. Wilson relies upon two post-December 18, 1998 incidents to establish his prima facie case for the third and fourth elements: (1) the 1999 denial of a pay raise and (2) the two disciplinary memorandums. In response, 34th Street argues that the disciplinary memorandums do not constitute an adverse employment action, and that in any event, these two incidents fail to give rise to an inference of unlawful discrimination.
An adverse employment action is defined as a "materially adverse change in the terms, privileges, duration and conditions of employment." Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (internal quotations omitted); see also Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997); Dortz v. City of New York, 904 F. Supp. 127, 156 (S.D.N.Y. 1995);McKenney v. New York City Off-Track Betting Corp., 903 F. Supp. 619, 623 (S.D.N.Y. 1995). The core activities encompassed by the term "adverse actions" include "discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand" Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999); see also Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir. 1995) (citing Rutan v. Republican Party, 497 U.S. 62, 75 (1990)). Adverse employment actions, however, are not limited to "pecuniary emoluments." Preda v. Nissho Iwai Am. Corp., 128 F.3d 789, 791 (2d Cir. 1997) (internal quotations and citation omitted); see also Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001). Lesser actions, such as negative evaluations letters, also may satisfy the requirement.Morris, 196 F.3d at 110 (citing Bernheim v. Litt, 79 F.3d 318, 327 (2d Cir. 1996)).
On the other hand, a "notice of discipline" or a "counseling memo" that does not create a materially adverse change in working conditions is insufficient as a matter of law to constitute an adverse employment action. Weeks v. New York State (Div. of Parole), 273 F.3d 76, 86 (2d Cir. 2001); see also Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 (2d Cir. 2000);Rodriguez v. Board of Educ., 620 F.2d 362, 366 (2d Cir. 1980).
While 34th Street's alleged improper denial of Wilson's pay raises clearly meets the definition of an adverse employment action, it is not as clear whether the counseling memorandums also constitute an adverse employment action. In construing the evidence in the record in a light most favorable to Wilson, the Court finds that a reasonable trier of fact could infer that the memorandums materially altered Wilson's conditions of employment, and thus, constituted an adverse employment action. Although 34th Street asserts that neither memorandum imposed or threatened to impose any disciplinary action, the July 26, 1999 counseling memo clearly places the Wilson "on notice" that he may be subject "to more severe penalties" if no improvement occurs as to disciplined activity. (Def. Mem. Ex. 15.) Likewise, the second memorandum indicates that the radio incident is "deferred until [Wilson's] unsatisfactory behavior is repeated," thereby suggesting that a subsequent incident will result in more severe discipline. (Id. at Ex. 16.) In this regard, the instant case is distinguishable from Weeks, where it was not clear whether the counseling memo was maintained by the employer, whether the memo had any effects on the plaintiff, or even if it was in writing. See Weeks, 273 F.3d at 86. The Court need not belabor this issue, however, because as discussed below, Wilson has failed to satisfy the final element of his prima facie case of discrimination, namely that the surrounding circumstances give rise to an inference of discrimination by 34th Street.
In order to establish the last element of his prima facie case, Wilson must show that a reasonable jury may infer discrimination from the surrounding circumstances of the adverse employment action. First, Wilson contends that an inference of discrimination can be drawn from the fact that 34th Street granted two white supervisors pay raises, while denying him his pay raise. Even when viewing the evidence in a light most favorable to Wilson, the Court cannot overlook Wilson's cherry picking of particular facts in isolation rather than considering all the surrounding circumstances in their totality. For example, in 1999, in addition to the instances cited by Wilson involving the two white employees who received pay raises, the record indicates that both a black and a hispanic supervisor were also awarded raises, while Brodigan, a white supervisor, was denied a raise. Wilson does not challenge these facts, and with no other evidence in the record, the Court finds that the surrounding circumstances on the issue of pay raises fail to give rise to an inference of discrimination based on Wilson's membership in a protected class.
Second, Wilson contends that the July 1999 disciplinary memorandum, regarding an officer under his supervision who removed his bullet-proof vest while on duty, creates an inference of discrimination because a white supervisor was not similarly disciplined after a similar incident where an officer under his supervision assaulted a second officer. Even if the Court were willing to grant that the two situations were similar and the facts are as Wilson claims, Wilson fails to offer any evidence to support an inference that the these actions were based on racial animus, and thus, his arguments on this point are conclusory. Because Wilson fails "to offer any meaningful evidence that these adverse actions were taken because of his race," summary judgment is warranted.Bazile v. City of New York, 215 F. Supp.2d 354, 378 (S.D.N.Y. 2002). Accordingly, the Court finds that Wilson has failed to carry even the minimal burden of establishing a prima facie case of discrimination under McDonnell Douglas. Summary judgment is therefore appropriate in this case.
E. NON-DISCRIMINATORY REASONS AND PRETEXT
Even assuming that the Court were willing to give Wilson the benefit of the doubt and find that he has established a prima facie case of discrimination, the Court finds that 34th Street has proffered facially neutral reasons for its employment actions concerning Wilson and that Wilson has failed to satisfy his ultimate burden in exposing the proffered reasons as pretextual. At this point in the analysis, 34th Street need only provide some non-discriminatory reason for its decisions. The Court need not assess the credibility of the proffered reason at this stage nor does 34th Street have to show that it actually relied on these reasons. See Hicks, 509 U.S. at 509; Farias v. Instructional Sys., 259 F.3d 91, 98 (2d Cir. 2001) (citing Burdine, 450 U.S. at 254).
With regard to the pay raises, 34th Street explains that Wilson was denied a raise in 1999 due to absenteeism. The record indicates that Wilson was absent 18 days in 1999 and 17 days the prior year. Wilson's absenteeism during these two years dwarfs the next highest offender, Brodigan (a white supervisor who was also denied a raise on the same grounds), by 15 days and the third highest offender by 32 days. As additional justification for its actions, 34th Street also notes the hardships of supervising such a large area borne by the one remaining supervisor on duty when the other is absent.
Wilson argues pretext based on the change in 34th Street's absenteeism policy in July 1998; on Brodigan allegedly earning a higher salary than he did at the beginning of 1999; and on his conclusory assertion that his performance was satisfactory. The Court notes that Wilson may carry his burden of showing pretext in the final step of the McDonnell Douglas framework "by reliance on the evidence comprising the prima facie case, without more." Holtz v. Rockefeller Co., 258 F.3d 62, 79 (2d Cir. 2001) (citing Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)). Nevertheless, the Court is not persuaded that Wilson has demonstrated from evidence in the record that 34th Street's reasons constitute merely a pretext for unlawful discrimination. To the contrary, the record supports 34th Street's proffered reasons for its actions. Wilson simply cannot prevail on his Title VII claim by relying on conclusory allegations unsupported by the record.
As discussed above, Wilson is time-barred from arguing that the change in policy (which in any event, applied to all supervisors) was a separate discriminatory act in violation of Title VII.
In regard to the July 1999 disciplinary memorandum, 34th Street explains that the two incidents occurred under a completely different set of circumstances. Specifically, 34th Street points out that management was different at the time the two incidents occurred; unlike the vest incident, the assault incident did not involve officers employed by 34th Street; and the undisciplined white supervisor was not on duty at the time of the assault, and therefore, could not be held responsible for failing to prevent it.
Wilson does not challenge these factual contentions, but rather, argues only that it does not matter that the other supervisor was not on duty when the incident occurred because both incidents were similar insofar as they were both beyond the control of the respective supervisor. The Court does not agree. It is intuitively unreasonable to analogize a situation where one supervisor was off duty and thus not responsible for the actions of subordinates at the time an incident occurred, to a situation where the supervisor was on duty and was directly responsible for his subordinates' compliance with safety procedures. In any event, the Court concludes that Wilson has failed to demonstrate that the challenged conduct can be attributed to improper discriminatory animus. With no other grounds to show pretext, Wilson falls short of satisfying his burden under the final step of the McDonnell Douglas analysis. Accordingly, the Court grants 34th Street's motion for summary judgment on Wilson's Title VII claim.
F. RETALIATION
Title VII prohibits an employer from "discriminat[ing] against any of its employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. . . ." 42 U.S.C. § 2000e-3(a). A plaintiff establishes a prima facie case of retaliation under Title VII by showing: (1) participation in a protected activity; (2) knowledge by the employer of the employee's protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action. See Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134 (2d Cir. 1999); see also Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d Cir. 2003). It is not disputed that Wilson's filing of the SDHR complaint is a "protected activity" that became known to 34th Street upon its filing on or about October 15, 1999. The issue before the Court for the purposes of summary judgment is whether an adverse employment action took place in the eight days that Wilson was on duty between the filing of his SDHR complaint and his resignation on November 1, 1999.
Wilson alleges that 34th Street retaliated against him by disclosing and displaying his SDHR complaint, a protected activity, to his colleagues, and in particular, to his partner, Conroy. According to Wilson, this action caused Conroy to distrust and cease communication with him. Wilson claims that 34th Street's alleged unlawful retaliatory act created an intolerable environment where he feared injury during those eight days that Conroy refused to assist him further. Wilson thus asserts that his resignation was a constructive discharge.
In response, 34th Street argues that even if the facts are as Wilson claims, Conroy was a co-worker and not Wilson's direct or indirect supervisor, and thus, Conroy's alleged conduct does not give rise to actionable retaliation and should not be imputed to 34th Street. In addition, 34th Street points out that Wilson did not report any incident regarding Conroy to his supervisors in accordance with 34th Street's anti-discrimination policy prior to resigning and filing his amended SDHR complaint.
The Court rejects Wilson's contention that his resignation constitutes a constructive discharge. This Court must grant summary judgment as a matter of law "unless the evidence is sufficient to permit a rational trier of fact to infer that the employer deliberately created working conditions that were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign."Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (2d Cir. 1993) (internal quotations and citation omitted).
Upon review of the record, the Court finds no support for an inference that 34th Street disclosed Wilson's SDHR complaint to Conroy in order to deliberately create difficult or unpleasant working conditions. If 34th Street were barred from disclosing the complaint to its employees, it "would be unable to take the most basic precautions to defend against the claim." United States v. New York City Transit Auth., 97 F.3d 672, 677 (2d Cir. 1996). Accordingly, "[r]easonable defensive measures do not violate the anti-retaliation provision of Title VII, even though such steps are adverse to the charging employee and result in differential treatment." Id. Wilson has failed to demonstrate racial animus beyond his mere conclusory allegations based solely on the disclosure of the SDHR complaint to his colleagues. Because Wilson has not adduced any evidence to establish a minimal inference that 34th Street's alleged actions were retaliatory, his claim of retaliation cannot withstand summary judgment.
Even if the Court were to impute the actions of Wilson's co-workers to 34th Street, the Court finds that no rational trier of fact could reasonably conclude from these facts that Wilson's working conditions reach the demanding level required to constitute an "adverse employment action." A constructive discharge reaches this level when an employer "deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (internal quotations and citation omitted). Wilson claims Conroy's distrust and refusal to speak to him created "an intolerable environment resulting in [his] fear that he could get hurt if his partner would not assist him further." (Pl. Mem. at 9.) Despite Wilson's attempt to equate the rigors of security supervision with the dangers of law enforcement, the record indisputably speaks to the contrary. Even the unarmed officers that the supervisors oversee are meant only to deter crime and other activity through their mere presence, and where such deterrence fails, they are instructed to contact the New York Police Department via radio.
At best, the record reasonably support an inference that Conroy's alleged actions made Wilson's job somewhat more difficult, awkward, or possibly unpleasant, which falls well short of being an intolerable working situation that renders Wilson's resignation a constructive discharge. See Stetson, 995 F.2d at 360 ("[T]he standard for constructive discharge [is not met] merely . . . [because] the employee's working conditions were difficult or unpleasant."). Accordingly, the Court grants 34th Street's motion for summary judgment on Wilson's retaliation claim.
G. HOSTILE WORK ENVIRONMENT
To establish a hostile work environment claim under Title VII, a plaintiff must first demonstrate that the defendant'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 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)) (internal brackets and quotations omitted). The following factors are relevant to this determination: "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a `mere offensive utterance'; (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted." Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 437 (2d Cir. 1999) (citing Harris, 510 U.S. at 23); see also Patterson v. CBS, Inc., No. 94 Civ. 2562, 2000 WL 666337, at *7 (S.D.N.Y. May 22, 2000);O'Gorman v. Holland, No. 97 Civ. 0842, 2000 WL 134514, at *6 (S.D.N.Y. Feb. 3, 2000).
A court must consider the totality of the circumstances and find, under a reasonable person standard, that the work environment is hostile or abusive, and that the victim subjectively perceived it as such. See Harris, 510 U.S. at 21-23; see also Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995). In order to survive summary judgment on a hostile work environment claim, a plaintiff must first show "either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of . . . [the plaintiff's] working environment." Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)).
Second, a plaintiff must "show a specific basis for imputing the hostile work environment to the employer." Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir. 2001). Under these circumstances, "[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
Wilson bases his hostile work environment claim on alleged continuous discriminatory conduct spurred by five incidents: (1) the 1998 denial of a pay raise; (2) the 1999 denial of a pay raise; (3) the disciplinary memos; (4) the disclosure of the SDHR complaint to Conroy; and (5) the transfer to 34th Street from GCP. The Court finds that the first four bases fail to establish a claim for hostile work environment for similar reasons discussed above with respect to Wilson's Title VII discrimination and retaliation claims. Specifically, the denial of pay raises, two isolated disciplinary memorandums, and the alleged disclosure of Wilson's SDHR complaint to Conroy, when considered in light of the evidence in the record, simply do not create a "sufficiently severe or pervasive" hostile work environment to be actionable under Title VII. Harris, 510 U.S. at 21.
The Court notes the following with regard to this finding. First, although the Court has not considered the denial of Wilson's pay raise in 1998 with regard to his Title VII claim, it fails for the same reason that the 1999 denial does, namely, the lack of correlation between the denial of pay raises and race, the apparent direct correlation between the denial of pay raises and absenteeism, and Wilson's inability to demonstrate a reasonable inference of racial animus. Second, the alleged cessation of communication between Conroy and Wilson cannot form the basis for a hostile environment claim because Wilson does not claim that these actions were taken by a "supervisor with immediate (or successively higher) authority over the employee."Burlington, 524 U.S. at 765.
Wilson is thus left with a single incident upon which to rest his claim for hostile work environment, namely, his transfer to 34th Street. In order to survive summary judgment, Wilson must be able to demonstrate that the record supports a reasonable inference by a trier of fact that this incident was extraordinarily severe and thus, made Wilson's continued employment intolerable. Even when viewing all of the evidence in a light most favorable to Wilson, the Court finds that the record is devoid of any evidence to support Wilson's conclusory contention that he was transferred "in an effort to eliminate the only African American Security Patrol Supervisor at [GCP]." (Compl. at ¶ 11.) Because Wilson has proffered no supporting evidence on which to base a claim of a hostile work environment, the Courts grants 34th Street's motion for summary judgment on this claim.
III. ORDER
For the reasons set forth above, it is hereby
ORDERED that the motion of defendant 34th Street Partnership Inc. for summary judgment dismissing all of plaintiff Almus Wilson's claims is GRANTED in its entirety.
The Clerk of Court is directed to close this case.