holding that employees working in different departments are per se dissimilarSummary of this case from Sackey v. City of New York
02 Civ. 359 (SAS)
February 10, 2003
Theodore Manessis, Brooklyn, New York, Plaintiff (Pro Se).
Michele A. Molfetta, Assistant Corporation Counsel of the City of New York, New York, NY, For Defendant.
OPINION AND ORDER
Plaintiff Theodore Manessis, proceeding pro se, alleges that the New York City Department of Transportation ("DOT"), Laura Chasin ("Deputy Commissioner Chasin"), William Hirsch ("Commissioner Hirsch") and John Liszczak ("Director Liszczak") discriminated against him in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Americans with Disabilities Act, 42 U.S.C. § 12102 et seq. ("ADA"), because of his race, national origin (Greek) and disabilities (hearing loss and learning disability).
Plaintiff's Complaint, in fact, does not allege race discrimination. See Complaint, Ex. A to the Declaration of Assistant Corporation Counsel Michele A. Molfetta in Support of Defendant's Motion for Summary Judgment ("Molfetta Decl."), ¶ 7 (alleging only that he was discriminated against because of his national origin ("Greek accent") and his hearing loss and learning disabilities). Reading plaintiff's pro se papers liberally as required by Haines v. Kerner, 404 U.S. 519, 520-21 (1972), plaintiff's race discrimination claims will be deemed incorporated into his Complaint because he did allege race discrimination in his Complaint to the New York State Division of Human Rights ("SDHR"). See SDHR Complaint, Ex. B to Molfetta Decl.
Specifically, plaintiff contends that while employed by DOT as a civil service Research Assistant he was subjected to a hostile work environment, wrongfully denied a promotion, and not timely provided with an appropriate device to accommodate his hearing difficulty. Plaintiff also alleges that defendants retaliated against him: (1) in violation of Title VII and the ADA because he filed various charges of discrimination; and (2) in violation of the New York State Civil Service Law § 75-b ("Whistleblower Law") for filing complaints with the Inspector General's Office. Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) on all of plaintiff's claims. For the reasons that follow, defendants' motion is granted and this case is dismissed.
Plaintiff's Complaint names the DOT as a defendant, not the City of New York. However, under the New York City Charter, individual City agencies are not suable entities unless specified by law. See N.Y. City Charter § 396; see also Vasquez v. City of New York, No. 99 Civ. 4606, 2000 WL 869492, at *4 (S.D.N.Y. June 29, 2000). Because DOT is a City agency which has not been authorized by law as a suable entity, the complaint fails to state a claim against it. Cf. Katz v. City of New York Dep't of Transp., No. 94 Civ. 8319, 1996 WL 599668, at *7 (S.D.N.Y. Oct. 17, 1996) ("Although plaintiff's EEOC charge . . . did not name the City of New York as a respondent, it did name the DOT. Because there is a substantial identity between the City of New York and the DOT, the City is deemed to have had notice of the EEOC charge."). Given plaintiff's pro se status and the fact that his SDHR Complaint does name the City of New York as a respondent, plaintiff's claims will be construed as if brought against the City of New York rather than DOT.
However, plaintiff's claims against the individual defendants must be summarily dismissed. There is no individual liability under Title VII. See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Similarly, it is well settled that there is no individual liability under the ADA. See Hallett v. New York State Dep't. of Corr. Servs., 109 F. Supp.2d 190, 199 (S.D.N.Y. 2000). Lastly, there is no individual liability under the Whistleblower statute. See Fry v. McCall, 945 F. Supp. 655, 666 (S.D.N.Y 1996). Accordingly, without reaching the merits of plaintiff's claims against the individual defendants, they are hereby dismissed.
Unless otherwise noted, the following facts are taken from Defendants' Local Rule 56.1 Statement of Undisputed Facts. Because plaintiff did not controvert a single fact set forth in that statement, all of the facts contained therein are deemed admitted. See Local Rule 56.1(c).
A. Plaintiff's Employment History
Plaintiff was hired by DOT on May 4, 1996 and was assigned to the Pre-K Student Transportation Unit. Plaintiff was subsequently re-assigned to the Office of Permit Management ("Permit Office") where he began working on March 6, 1997 as a Research Assistant. Shortly thereafter, Willie Mae Timothy was appointed Deputy Director of the Permit Office. In that capacity, she directly supervised plaintiff from 1997 through March of 2000.
The Permit Office is one of five separate and distinct units comprising the Bureau of Permit Management and Construction Control (the "Bureau"). The other units are: Office of Construction and Mitigation Coordination-Streets ("OCMC-Streets"); Office of Construction and Mitigation Coordination-Highways ("OCMC-Highways"); Office of Land Use Review; Highway Inspection and Quality Assurance ("HIQA"). See Declaration of Jean Frankowski, Director of Personnel, Payroll and Timekeeping at DOT ("Frankowski Decl."), Ex. P to Molfetta Decl., ¶ 5. Commissioner Hirsch is the Assistant Commissioner of the entire Bureau which oversees each of the units. Director Liszczak is the Executive Director of the Permit Office and reports directly to Commissioner Hirsch.
In late January of 1999, plaintiff met with Commissioner Hirsch and Director Liszczak and requested that his title be changed to Chief Statistician of the Bureau. Plaintiff was informed that no such position was available. However, in September of 1999, Commissioner Hirsch and Director Liszczak changed plaintiff's title from Research Assistant to Chief Research Assistant and gave him an eight percent raise.
On March 1, 2000, plaintiff met with Director Liszczak and Deputy Director Timothy to discuss his job performance and satisfaction. During that meeting, plaintiff called Timothy a racist. Timothy filed an internal Equal Employment Opportunity ("EEO") complaint against plaintiff because of his remark. However, no official action was taken against plaintiff as a result of this filing.
On March 6, 2000, Ann Williams, DOT's EEO officer, met with plaintiff, Timothy and Director Liszczak in an attempt to reconcile their differences. Soon after this meeting, plaintiff attempted to file an internal EEO complaint against Timothy for calling him a liar and a sick man. Williams refused to accept the complaint, stating that it was a disciplinary issue, not EEO related. As a result of this meeting, Director Liszczak became plaintiff's supervisor. On August 17, 2001, plaintiff received a "conditional" evaluation from Director Lizczak, which he appealed.
Plaintiff has the date of this meeting as March 7, 2000. See SDHR Complaint, Ex. B to Molfetta Decl., ¶ 9.
B. Plaintiff's Administrative Filings
Plaintiff has a long history of filing complaints, all of which have been unsuccessful. In early 1997, plaintiff filed a complaint with the Inspector General's ("IG") Office alleging corruption within the Pre-K Unit. In October of 1997, plaintiff filed an internal EEO complaint alleging that he was discriminated against based on his disabilities by his former supervisors in the Pre-K Unit. The EEO Office dismissed this complaint finding it to be labor, not EEO, related. Plaintiff filed two more internal EEO complaints, one on July 26, 1999 and the other on August 11, 1999.
Plaintiff filed his first Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on January 3, 2000. In that Charge, he alleged that he was subjected to unfair employment practices and retaliation based on his national origin and alleged disabilities. After an investigation, the EEOC concluded that there was insufficient information to support plaintiff's allegations. Shortly thereafter, the EEOC sent a right-to-sue letter to plaintiff who chose not to pursue the matter in federal court. On March 12, 2000, plaintiff filed another Charge of Discrimination with the EEOC alleging that he was retaliated against for having filed internal EEO complaints. This Charge was amended the following month to include race discrimination and retaliation. The alleged retaliation consisted of Timothy's filing of an internal EEO complaint against plaintiff and Williams' refusal to accept an EEO complaint against Timothy. In July of 2000, plaintiff amended this Charge a second time by alleging national origin discrimination and retaliation for opposing discriminatory practices. On September 29, 2000, the EEOC issue plaintiff a right-to-sue letter for his March 12, 2000 Charge as amended. Again, plaintiff did not pursue the matter.
Then, on October 11, 2000, plaintiff filed a Charge of Discrimination with the SDHR, which was cross-filed with the EEOC. This Complaint alleged that because of his race, national origin, and disability (hearing impairment) defendants: created a hostile work environment; failed to promote him; retaliated against him for filing complaints of unlawful employment practices; and failed to timely accommodate his disability. On October 5, 2001, the SDHR issued a Determination and Order After Investigation which found no probable cause to believe that plaintiff was discriminated against on the basis of race, national origin or disability, or retaliated against. The EEOC issue a right-to-sue letter with respect to the cross-filed SDHR Complaint on November 5, 2001. Plaintiff filed the instant Complaint on December 14, 2001.
II. LEGAL FRAMEWORK
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is `material' for these purposes if it might affect the outcome of the suit under the governing law[,] [while] [a]n issue of fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Shade v. Housing Auth. of City of New Haven, 251 F.3d 307, 314 (2d Cir. 2001) (internal quotation marks and citations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted).
In assessing the record to determine whether genuine issues of material fact are in dispute, a court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001). "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
The non-moving party may not, however, "rest upon . . . mere allegations or denials." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.") (internal quotation marks, citation, and alteration omitted). Mere conclusory statements, conjecture or speculation cannot by themselves create a genuine issue of material fact. See Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
"The salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Nicastro v. Runyon, 60 F. Supp.2d 181, 183 (S.D.N.Y. 1999) (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). Courts within "the Second Circuit have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination." Scaria v. Rubin, No. 94 Civ. 3333, 1996 WL 389250, at *5 (S.D.N.Y. July 11, 1996), aff'd, 117 F.3d 652 (2d Cir. 1997). Indeed, it is now "beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 466 (2d Cir. 2001), cert. denied, 534 U.S. 993 (2001).
However, greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer's intent is genuinely at issue and circumstantial evidence may reveal an inference of discrimination. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law." Bickerstaff, 196 F.3d at 448 (internal quotation marks and citation omitted, brackets in original). But even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). "[A] party may not `rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.'" Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) (quoting Knight v. United States Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)).
B. Title VII's Burden-Shifting Analysis
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).
The Supreme Court has "established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory-treatment cases." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Where, as here, the plaintiff has not alleged any direct evidence of discrimination, he must proceed under the burden-shifting framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Hotlz v. Rockefeller Co., Inc., 258 F.3d 62, 76 (2d Cir. 2001).
Under this analysis, the plaintiff must first prove a prima facie case of discrimination. See id.; see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If the plaintiff establishes a prima facie case, "a presumption of discrimination is created and the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action." Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). "If the defendant meets this burden of production, `the presumption drops out of the analysis,' and the plaintiff must prove that he or she was actually the victim of intentional discrimination." Little v. National Broad. Co., 210 F. Supp.2d 330, 376 (S.D.N.Y. 2002) (quoting Farias, 259 F.3d at 98). At that point, "the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James v. New York Racing Ass'n., 233 F.3d 149, 156 (2d Cir. 2000) (emphasis added).
III. PLAINTIFF'S CLAIMS UNDER TITLE VII
A. Plaintiff's Hostile Work Environment Claim
It is well settled that "[t]o prevail on a hostile work environment claim, a plaintiff must demonstrate (1) that his workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Schwapp, 118 F.3d at 110 (internal quotation marks, citation and brackets omitted). Further, the conduct alleged must be "severe and pervasive enough to create an environment that `would reasonably be perceived, and is perceived, as hostile or abusive.'" Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)). Accordingly, courts considering claims of hostile work environment must weigh "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. It is axiomatic that plaintiff must show that the complained-of conduct occurred because of his race (Caucasian) or national origin (Greek). See Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002).
The Second Circuit recently cautioned that "it is easy to claim animus" in employment discrimination cases. Id. at 377-78. The Alfano Court emphasized that
Everyone can be characterized by sex, race, ethnicity or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals.
Id. at 377.
Plaintiff offers the following incidents in support of his hostile work environment claim:
1. Plaintiff's former Supervisor, Willie Mae Timothy, in an alleged conversation with an unidentified co-worker, on an unspecified date, referred to a client of DOT as "Who is this damn Greek." See Deposition of Theodore G. Manessis ("Manessis Dep."), Ex. L to Molfetta Decl., at 116.
2. During a March 1, 2000 meeting, Director Liszczak and Timothy called plaintiff "a liar, sick man and paranoid." See 3/19/00 Charge of Discrimination, Ex. G to Molfetta Decl, at 2.
3. On or about May 31, 2000, Vincent Maniscalco, Director of HIQA, a unit separate from plaintiff's unit, joked with plaintiff when he misheard plaintiff. Maniscalco thought plaintiff said "cost dialysis" instead of "cost analysis." See 7/7/00 Charge of Discrimination, Ex. I to Molfetta Decl., at 1.
4. On or about June 2, 2000, Maniscalco asked plaintiff who owned the newspaper in the next cubicle, thereby inferring that plaintiff was not performing his duties. See SDHR Complaint ¶ 9.
5. On or about June 15, 2000, Maniscalco told plaintiff that he was not using the Excel worksheet program correctly, and that plaintiff filed frivolous EEO complaints. See id. ¶ 9.
6. On or about, June 16, 2000, plaintiff received anonymous prank calls at the office. Shortly after, Maniscalco and another employee harassed plaintiff by continuously looking at him while they patrolled the area near his cubicle. See id. ¶ 12.
7. On or about March 2, 2001, during office renovation, Director Liszczak had Frank Puccio, plaintiff's co-worker, blocked plaintiff's pathway out of his cubicle and placed boxes outside plaintiff's cubicle. The next day plaintiff found dust on his desk as a result of the renovation. See 3/6/01 Letter from Manessis to Rhoda Johnson, Ex. F to plaintiff's Complaint; Manessis Dep. at 172.
8. During the construction Director Liszczak allegedly told plaintiff "you can go any where even the street." See SDHR Complaint ¶ 13; Manessis Dep. at 173.
9. Commissioner Hirsch's "condescending attitude" created a hostile work environment. See SDHR Complaint ¶ 13.
10. Director Liszczak commented on plaintiff's sentence structure and that he talks too much. See Manessis Dep. at 185.
Only two of these incidents even arguably evidence discriminatory bias — Timothy's alleged comment in reference to a DOT client, "Who is that damn Greek?" and Maniscalco's "Cost Dialysis" joke. These comments, even when combined, fail to show that plaintiff's work environment was permeated with discriminatory intimidation. See Schwapp, 118 F.3d at 110 (the incidents must be sufficiently severe or pervasive).
Timothy's comment was not directed at plaintiff and was isolated. Single incidents, unless very serious, generally do not satisfy the necessary requirement of severity or pervasiveness. But see Alfano, 294 F.3d at 374 ("[I]t is well settled in this Circuit that even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff's workplace.") (citing Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000), as an example where a single incident of vile and sexually explicit verbal abuse of a female firefighter intolerably altered her work environment). "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.'" Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (quoting Tomka, 66 F.3d at 1305 n. 5. See also Carrero v. New York City Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989)). Furthermore, "stray remarks, even if made by a decisionmaker, do not constitute sufficient evidence to make out a case of employment discrimination . . . such comments, without more, cannot get a discrimination suit to a jury." Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) (emphasis in original). Similarly, Maniscalco's "Cost Dialysis" joke, even if interpreted as harassing, was a single, brief incident. Thus, both comments were isolated, mild and not pervasive, and therefore insufficient to create a hostile work environment.
The eight remaining incidents are facially neutral and devoid of apparent discriminatory animus. In analyzing hostile work environment claims, facially discriminatory neutral incidents may be included in the "totality of circumstances" as long as there is some circumstantial basis for inferring that facially discriminatory neutral incidents were actually discriminatory. Alfano, 294 F.3d at 378. However, in the case at bar, the record is devoid of any evidence that the remaining eight allegations were in fact motivated by discriminatory animus.
In Alfano, the court held in a hostile work environment claim based on gender, that four gender-based incidents were not enough evidence to infer that the other eight, gender-neutral incidents, were motivated by discriminatory animus. See Alfano, 294 F.3d at 378.
For instance, plaintiff alleges that Maniscalco, a DOT employee, informed plaintiff that he was not performing his job correctly, specifically that plaintiff was not using the formula contained in Excel when conducting calculations. See 7/7/00 Charge of Discrimination, Ex. H to Molfetta Decl., at 1-2. Plaintiff claims that this comment helped created a hostile work environment. However, unlike the plaintiff in Richardson, plaintiff cannot demonstrate that Maniscalco's comments were motivated by discrimination. See Richardson v. New York State Dep't. of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999) (supervisor and co-workers made racially charged comments including calling plaintiff a "light-skinned nigger"). Similarly, plaintiff did not offer any evidence to suggest that Maniscalco was motivated by discriminatory bias when he asked plaintiff who the newspaper belonged to in the next cubicle.
Additionally, plaintiff alleges that during a meeting in Timothy's office with Director Liszczak present, she called him a "liar, paranoid and sick man" in response to him calling her a racist. See 5/30/00 Letter from Manessis to Commissioner Wilbur L. Chapman, Ex. A to plaintiff's Complaint, at 2; see also Deposition of Willie Mae Timothy ("Timothy Dep."), Ex. M to Molfetta Decl., at 23. The meeting was held because Director Liszczak and Timothy were concerned with the level of stress plaintiff seemed to be experiencing on the job. See Report and Recommendation of Ann Williams, EEO Officer, Ex. X to Molfetta Decl. Although Timothy does not deny calling plaintiff those names, plaintiff cannot demonstrate that her comments were motivated by race or national origin discrimination. Although plaintiff might have found the comments directed at him to be offensive, they were race, national origin and disability-neutral, and no evidence in the record suggests that the comments were motivated by anything other than frustration and disbelief.
Plaintiff's allegations that Director Liszczak intentionally obstructed plaintiff's cubicle and path to clock out during an office renovation and told plaintiff he could "go any where, even the street," are similarly devoid of discriminatory animus. The mere fact that plaintiff was slightly inconvenienced during a brief period of renovation does not raise an inference of discriminatory animus. See Bowman v. Shawnee State Univ., 220 F.3d 456, 464 (6th Cir. 2000) ("[W]hile [plaintiff] recites a litany of perceived slights and abuses, many of the alleged harassing acts cannot be considered in the hostile environment analysis because [plaintiff] has not shown that the alleged harassment was based upon his status as a male. . . . In Title VII actions, however, it is important to distinguish between harassment and discriminatory harassment in order to `ensure that Title VII does not become a general civility code.'" (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation omitted)).
Additionally, plaintiff alleges in his SDHR complaint that, "based on my belief, Asst. Comm. Bill Hirsch['s] condescending attitude towards me has resulted in a hostile work environment and low employee morale." SDHR Complaint at ¶ 13. However, at plaintiff's deposition, he explained that he believed Commissioner Hirsch, the Assistant Commissioner of the entire Bureau, created a hostile work environment because he "[gave] increases to people and as a result it becomes this kind of friction and conflict because everybody knows how much — everybody says, he's got a raise, he's got a raise, so he gives some kind of conflict to the department." Manessis Dep. at 18-19. Thus, plaintiff does not even allege that Commissioner Hirsch acted in a discriminatory fashion. Additionally, plaintiff admitted during his deposition that Commissioner Hirsch never made offensive comments to him. See id. at 21. Accordingly, Commissioner Hirsch's conduct cannot support plaintiff's hostile work environment claim.
In wholly conclusory fashion, plaintiff alleges that he received anonymous prank calls and that Maniscalco patrolled his cubicle and looked at him in a hostile manner. See SDHR Complaint ¶ 12. However, plaintiff does not allege that any comments were made that would lead to the conclusion that the mysterious prank calls or Maniscalco's alleged behavior were motivated by discriminatory animus. Plaintiff also alleges that he overheard Director Liszczak telling a co-worker that plaintiff speaks too loud and that he has an accent. See Manessis Dep. at 182. Even if Director Liszczak made comments about plaintiff's speech, a reasonable person would not infer a discriminatory intent. It is unreasonable to suggest that a comment about someone speaking too loud, or too much, or with an accent, evidences an underlying bias about that individual's national origin. See Watt v. New York Botanical Garden, No. 98 Civ. 1095, 2000 WL 193626, at *7 (S.D.N.Y. Feb. 16, 2000) (stating that it would be an inferential leap to infer that a comment about an employee's accent suggests an underlying bias against persons of that national origin). The comment must be probative of discriminatory intent, i.e. a supervisor saying that he does not like an employee's accent, to reflect some bias. See id. Accordingly, Director Liszczak's comments are devoid of discriminatory bias.
This Court has previously observed that "[c]ourts have repeatedly granted summary judgment in hostile work environment claims where the evidence points, not to [discriminatory animus], but rather to the fact that plaintiff's personality is the motivation for the harassment." Figueroa v. City of New York, No. 00 Civ. 7559, 2002 WL 31163880, at *3 (S.D.N.Y. Sept. 27, 2002). See also Fisher v. Vassar Coll., 114 F.3d 1332, 1337 (2d Cir. 1997) (noting that an employer may take adverse employment action against an employee for any "reason that is non-discriminatory but unbecoming or small-minded, such as back-scratching, log-rolling . . . spite or personal hostility"), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000); Vore v. Indiana Bell Tel. Co., Inc., 32 F.3d 1161, 1162 (7th Cir. 1994) ("If the workplace is unsavory for any reason other than hostility generated on the basis of race, gender, ethnicity, or religion, no federal claim is implicated. In short personality conflicts between employees are not the business of the federal courts.")
In sum, the record establishes that the two arguably discriminatory comments, both isolated, relatively mild and insufficient in themselves to create a hostile work environment, cannot support an inference that the other eight incidents were motivated by discriminatory animus. Accordingly, no reasonable jury could conclude that plaintiff was subjected to a hostile work environment. See Alfano, 294 F.3d at 377; Pimentel v. City of New York, No. 00 Civ. 326, 2001 WL 1579553, at *10 (S.D.N.Y. Dec. 11, 2001) ("While these other incidents may show, as in Richardson, that plaintiff was not liked by [his] supervisor, they cannot prove a claim of hostile work environment.") (summary judgment granted in full on reconsideration, see Pimentel v. City of New York, 2002 WL 977535, at *1 (S.D.N.Y. May 14, 2002)). Plaintiff's hostile work environment claim must therefore be dismissed.
B. Plaintiff's Other Discrimination Claims
1. Plaintiff's Failure to Promote Claim
Plaintiff informally requested to be provisionally appointed to the Staff Analyst position in 1999 and 2000. See Manessis Dep. at 141; 1/6/03 Letter from Manessis to the Court ("Sur-Opposition Letter"). Plaintiff formally requested, via e-mail, to be appointed as a Staff Analyst on March 27, 2002 and again on August 12, 2002. See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment at 4 and E-Mail Exhibits (unnumbered). Plaintiff alleges that defendants wrongfully refused to promote him, on either a permanent or provisional basis, to the position of Staff Analyst, a position for which he had taken a civil service exam.
To establish a claim of discriminatory failure to promote within the Second Circuit, a plaintiff must show: (1) that he is a member of a protected class; (2) that he applied for a position for which he was qualified; (3) that he was rejected for the position under circumstances suggesting an inference of discrimination; and (4) that the employer kept the position open and continued to seek applicants. See Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998) (reading McDonnell Douglas and Burdine generally "to require a plaintiff to allege that she or he applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions she or he generally requested promotion").
It is undisputed that plaintiff took the civil service test for the Staff Analyst position in 1999 and scored a 90. See Manessis Dep. at 142. It is similarly undisputed that more than 1,300 test-takers achieved a higher score. See Declaration of Stephen Dobrowsky, Director of the Certification Unit at the New York City Department of Citywide Administrative Services ("DCAS"), in Support of Defendants' Motion for Summary Judgment ("Dobrowsky Decl."), Ex. V to Molfetta Decl., ¶ 8. Finally, it is undisputed that the Permit Office, where plaintiff worked, did not have a Staff Analyst position available from December 1999 through October 2002. See Declaration of Willie Mae Timothy, former Deputy Director of the Permit Office, in Support of Defendants' Motion for Summary Judgment ("Timothy Decl.") ¶ 5. Accordingly, plaintiff cannot show that he was rejected for the Staff Analyst position for discriminatory reasons, or that defendants continued to attempt to fill the Staff Analyst position after rejecting him. As such, his claim of discrimination fails.
The Staff Analyst list included over 1,300 people who scored higher than plaintiff on the examination and an additional 296 people whose score matched that of plaintiff. See Dobrowsky Decl. ¶¶ 8, 10. According to the agency that administers the Staff Analyst test, October 2001 was the first time that someone with a score of 90 (plaintiff's score) became eligible for promotion to the Staff Analyst position. See id. ¶ 12. Plaintiff is one of approximately 180 persons who scored a 90 on the exam and remains on the Staff Analyst list. See id. ¶ 15. The Staff Analyst list is still active. See id.
Plaintiff points to twelve individuals whom he contends were wrongfully promoted over him during the time he allegedly sought a promotion. "One way to create an inference of discrimination is to show that similarly situated employees, outside of plaintiff's protected class, were treated preferentially." Campbell, 107 F. Supp.2d at 244. In failure to promote cases, "[t]o be `similarly situated', the individuals with whom [plaintiff] attempts to compare [himself] must be similarly situated in all material respects." Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). However, none of the twelve employees plaintiff points to are similarly situated and, accordingly, comparison to them does not evidence an inference of discrimination.
Six of the twelve employees are automatically eliminated from the analysis because they are employed in different units within the Bureau. See Frankowski Decl. ¶¶ 7-11, 13, 18. As such, those employees had different supervisors than plaintiff and performed tasks distinct from plaintiff's. Because plaintiff worked in the Permit Office, the directors of the other units were unfamiliar with his work. The promotions received by these six employees were initiated by supervisors who had no ability to promote plaintiff. Accordingly, plaintiff cannot compare himself with these six employees because they are not similarly situated in "all material respects." Shumway, 118 F.3d at 64.
These six individuals include: Duane Barra (OCMC-Streets), Judith Johnson (Commissioner's Office), Joan Ramer (Commissioner's Office), Edward Campbell (OCMC-Highway), Conn MacAogain (OCMC-Highway) and Angela Jones (OCMC-Streets). See Frankowski Decl. ¶¶ 7-10, 13 and 18.
Similarly, none of the six individuals identified by plaintiff as employed within the Permit Office and supervised by Director Liszczak (plaintiff's supervisor), are similarly situated. Timothy and Jennings are eliminated from the outset because neither received a promotion during the relevant time period. See Frankowski Decl. ¶ 14. Frank Puccio, an employee in the Newstand Unit, received a provisional appointment to the position of Associate Staff Analyst, a position for which plaintiff did not apply. See id. ¶ 12. For the same reason, plaintiff is also not similarly situated to Charlene Wheeler, previously a permanent Staff Analyst who was appointed from Staff Analyst I to Staff Analyst II and then to Associate Staff Analyst, after taking a civil service exam for that position. See id. ¶ 16. Plaintiff was not eligible for Wheeler's first promotion as he was not a Staff Analyst. See id. Plaintiff did not take the exam for Associate Staff Analyst and therefore was not eligible for Wheeler's second promotion. See Dobrowsky Decl. ¶ 16 ("Plaintiff only took the civil service examination for Staff Analyst."). Plaintiff is also not similarly situated to Mark Hsaio, but for a different reason. Hsaio was permanently appointed to Staff Analyst on December 5, 1999. See Frankowski Decl. ¶ 11. Although plaintiff was on the same Staff Analyst list as Hsaio, Hsaio scored a 100 on the exam and therefore had priority. See id. Plaintiff was not eligible for promotion at that time because persons who scored 90 on the Staff Analyst exam first became eligible for the position on October 9, 2001. See Dobrowsky Decl. ¶ 12. As such, if defendants had appointed plaintiff on December 5, 1999, out of turn, when Hsaio was on the civil service list with a higher score, that would have violated the Civil Service Law. See N.Y. Civ. Serv. Law § 61. Lastly, Beverly Jennings, an employee of the Permit Office, did not get a promotion during the relevant time period. See Frankwoski Decl. ¶ 15. Accordingly, plaintiff was not similarly situated to any of the twelve employees with whom he compares himself. With an absence of any valid comparators, no reasonable jury could find that plaintiff was not promoted because of discriminatory animus.
These six individuals include: Mark Hsaio, Frank Puccio, Willie Mae Timothy, Beverly Jennings, Charlene Wheeler and Miriam Gaynor. See Frankowski Decl. ¶¶ 11, 12, 14-17.
Moreover, defendants have proffered a legitimate non-discriminatory reason for not promoting plaintiff. Plaintiff's score on the civil service exam did not qualify him for promotion until October 9, 2001. At that time, there were no openings for a Staff Analyst position in the Permit Office. Plaintiff's failure to promote claim must therefore fail unless he can prove that defendants' reason is pretextual. However, just as there is insufficient evidence in the record to establish a prima facie case, there is nothing in the record to rebut defendants' proffered nondiscriminatory reason. See Chambers v. TRM Copy Ctr. Corp., 43 F.3d 29, 38 (2d Cir. 1994) ("Pretext may be demonstrated either by the presentation of additional evidence showing that the employer's proffered explanation is unworthy of credence, or by reliance on the evidence comprising the prima facie case, without more.") (internal quotation marks and citations omitted). Accordingly, plaintiff's failure to promote claim is dismissed.
2. Plaintiff's Disparate Treatment Claims
A Title VII disparate treatment claim can be asserted if an employer treats someone "less favorably than others because of [his] race, color, [or] religion." Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993). To establish a prima facie case of disparate treatment, 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 action occurred under circumstances giving rise to an inference of discrimination. See Saunders v. City of New York, 200 F. Supp.2d 404, 409 (S.D.N.Y. 2002).
In order to demonstrate an adverse employment action, a plaintiff must show that he was subjected to a "materially adverse change in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks and citation omitted). A "materially adverse" change in working conditions "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (internal quotation marks and citations omitted). That is, "`not everything that makes an employee unhappy is an actionable adverse action." Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002) (Martin, J., dissenting) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). While there is no exhaustive list of what constitutes an adverse employment action, the following actions, among others, qualify: "`termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.'" Galabya, 202 F.3d at 640 (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)).
Here, plaintiff alleges that he was the victim of discrimination, on the basis of his race, national origin and/or disability, in the following ways: (1) he was denied a new computer, while a new computer was given to a black co-employee; and (2) an internal EEO charge he attempted to file was rejected. See Manessis Dep. at 102, 181. Neither of these allegations establish a prima facie case.
At his deposition, plaintiff testified that he was discriminated against because he was not allowed to attend department meetings, his workload was decreased, his reports were sabotaged, and he was not offered the opportunity to attend computer training classes. See Manessis Dep. at 185, 189. However, these allegations are not contained in plaintiff's SDHR Complaint or his earlier EEOC Charges. Accordingly, these claims are not properly before this Court. See Butts v. City of New York Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) ("A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge."), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2d Cir. 1998). Even if these claims were before the Court, plaintiff has failed to show that any of these actions occurred under circumstances giving rise to an inference of discrimination.
The alleged failure to give plaintiff a new computer does not rise to the level of an adverse employment action. See Galabya, 202 F.3d at 640 (adverse employment action must be "more disruptive than a mere inconvenience"). According to plaintiff's previous supervisor, plaintiff's computer was sufficient to run the programs he needed to perform his job duties. See Timothy Dep. at 101. Furthermore, plaintiff himself stated that he was able to perform his job satisfactorily. See Manessis Dep. at 202 (plaintiff admitted that he supplied computer generated reports to all Bureau managers). Accordingly, the evidence shows that plaintiff did not need a new computer to perform his job duties. Merely because an African-American employee received a new computer is insufficient to show an adverse employment action.
Similarly, there is no evidence that plaintiff suffered an adverse employment action by the allegedly wrongful refusal to accept an internal EEO complaint he sought to file, or that the refusal to accept his complaint took place under circumstances suggesting discrimination. On March 7, 2000, plaintiff sought to file an internal EEO complaint against Timothy because she allegedly called him "a liar and a sick man." SDHR Complaint ¶ 6. Plaintiff was informed by Ann Williams, Assistant Commissioner and EEO Officer, that his complaint was not an EEO issue, but a disciplinary one. See 6/22/00 Letter from Ann Williams, Ex. Y to Molfetta Decl. In a similar case, this Court stated: "the mere fact that the claim was not `accepted' is not sufficient to raise an inference of discriminatory intent." Pimentel, 2001 WL 1579553, at *6. Plaintiff does not even allege that he suffered an adverse employment action as a result of the rejection of his claim. Accordingly, plaintiff's claim of disparate treatment must be dismissed.
IV. PLAINTIFF'S RETALIATION CLAIMS
A. In General
In order to establish a prima facie case of retaliation, plaintiff must prove that: (1) he engaged in protected activity; (2) defendant was aware of the activity; (3) he was subjected to an adverse employment action; and (4) there is a causal connection between the protected activity and the adverse employment action. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000). The Second Circuit has held that "a close temporal relationship between a plaintiff's participation in protected activity and an employer's adverse actions can be sufficient to establish causation." Traglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (citing Cifra v. General Elec. Co., 252 F.3d 205, 217 (2d Cir. 1998) ("The causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.") (internal quotation marks omitted)). Because plaintiff has presented no direct evidence of retaliatory animus, he must rely on temporal proximity alone. For mere temporal proximity to establish causality, the intervening period must be "very close." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).
B. Retaliation Based on the Filing of EEO and EEOC Complaints
In the instant case, plaintiff claims that he was retaliated against for complaining of discrimination in the following ways: (1) he was denied a promotion; (2) he received a "conditional" performance evaluation; and (3) an EEO charge was filed against him. Plaintiff filed three complaints with DOT's internal EEO office: one in October of 1997, one on July 26, 1999 and the third on August 11, 1999. See SDHR Complaint ¶ 3. He also filed two complaints with the EEOC in 2000, one on January 3, 2000 and the other on March 12, 2000. See EEOC Charges of Discrimination, Exs. D and H to Molfetta Decl. Plaintiff filed a complaint with the State Division of Human Rights, which was cross-filed with the EEOC, on October 11, 2000. See SDHR Complaint.
Plaintiff claims that he received an unfair performance evaluation in retaliation for complaining about discriminatory practices. See 8/28/02 Letter from Manessis to Marsha Singer, Assistant Commissioner, Human Resources, Ex. S to Molfetta Decl. It is well-settled that negative evaluations alone, without any accompanying adverse consequences, such as a demotion, diminution of wages, or other tangible loss, do not constitute adverse employment actions. See, e.g., Valentine v. Standard Poor's, 50 F. Supp.2d 262, 284 (S.D.N.Y. 1999) ("Given that plaintiff's negative reviews did not lead to any immediate tangible harm or consequences, they do not constitute adverse actions materially altering the conditions of his employment."), aff'd, 205 F.3d 1327 (2d Cir. 2000); Pellei v. International Planned Parenthood Fed'n/Western Hemisphere Region, Inc., No. 96 Civ. 7014, 1999 WL 787753, at *12 (S.D.N.Y. Sept. 30, 1999) (granting summary judgment where plaintiff "fail[ed] to demonstrate that the performance evaluations caused a materially adverse change in the conditions of [his] employment, such as demotion, suspension, or loss of wages").
Plaintiff received a "conditional" performance evaluation for the 2000 work year. See Nonmanagerial Performance Evaluation Sheet, Ex. R to Molfetta Decl. There is no evidence indicating that this evaluation in any way affected plaintiff's promotional opportunities within DOT. Plaintiff does not allege that his conditional rating caused any other adverse consequences other than extreme stress and anxiety, which are insufficient to establish an "adverse employment action". See Castro v. New York City Bd. of Educ. Pers., No. 96 Civ. 6314, 1998 WL 108004, at *7 (S.D.N.Y. Mar. 12, 1998) ("[A]lthough reprimands and close monitoring may cause an employee embarrassment or anxiety, such intangible consequences are not materially adverse alterations of employment conditions.").
Similarly, plaintiff's claim that he was retaliated against when Timothy filed an internal EEO complaint fails as a matter of law. On or about March 23, 2000, Timothy filed an internal EEO complaint against plaintiff because he called her a racist. See Timothy Dep. at 23. Despite the fact that Timothy had a legitimate, nondiscriminatory reason for filing the EEO charge, the complaint was investigated and dismissed without any adverse action taken against the plaintiff. See 6/22/00 Letter from Ann Williams to Manessis, Ex. Y to Molfetta Decl. Accordingly, because the terms and conditions of plaintiff's employment were not altered in any way, he cannot establish an adverse employment action and his retaliation claim must be dismissed. See Galabya, 202 F.3d at 641.
Finally, plaintiff alleges that defendants retaliated against him for filing discrimination complaints by failing to promote him. Plaintiff's last filing of a discrimination charge occurred on October 11, 2000. Plaintiff formally requested a promotion to Staff Analyst on March 23, 2002 and August 13, 2002. The period between plaintiff's last EEOC filing and his first formal promotion request is approximately seventeen months. Thus, the gap between the last protected activity (the filing of the SDHR Complaint on October 11, 2000) and the adverse employment action (denial of plaintiff's formal requests for promotion in 2002) is too remote to support a retaliation claim. See, e.g., Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990) (finding period of three months between the protected activity and the adverse action to be insufficient to make out a prima facie case); Cobian v. New York City, No. 99 Civ. 10533, 2000 WL 1782744, at *18 (S.D.N.Y. Dec. 6, 2000) (dismissing retaliation claim where there was more than four month lapse between protected activity and adverse action), aff'd, 2002 WL 4594 (2d Cir. 2001).
In plaintiff's Sur-Opposition Letter, which this Court accepted as part of his opposition papers, plaintiff states:
On or about August, 1999, Defendant Deputy Commissioner Laura Chasin Assistant Commissioner William Hisrch [sic] spoke to my immediate supervisor John Lizcak [sic] and authorized him to give me the Office Title of Chief Research Analyst with the understanding [that] when I take the test for Staff Analyst in February 2000, they [were] going to appoint me to the Staff Analyst Title — Level I. This resulted in me working out of my title and receiving less pay than I would with a change in my Civil Service Title. At the time, I also spoke to Ms. Willie Mae Timothy, the Department's Personnel Coordinator[,] regarding the situation.
After I took the Civil Service Examination for Staff Analyst Level I in February 2000, I spoke to Ms. Timothy again two more times in February, 2000, and twice more in March, 2000, regarding the change of my Civil Service Title.
Sur-Opposition Letter. See also Manessis Dep. at 141 ("I request promotion in '99 and 2000 with others."). If a promise to promote plaintiff to Staff Analyst was in fact made in 1999, there would be a sufficient temporal nexus between the protected activity (plaintiff's filing of discrimination claims in 1999 and 2000) and the adverse employment action (the refusal to change plaintiff's civil service title in 2000) to establish the required causal connection. However, the "understanding" allegedly reached between Deputy Commissioner Chasin, Commissioner Hirsch and Director Liszczak — that plaintiff would be appointed to Staff Analyst in February 2000 after taking the civil service examination for that position — is inadmissible hearsay. As such, it cannot create a material issue of fact to defeat summary judgment. See Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999) (holding that affidavit providing hearsay information is not competent evidence to defeat summary judgment motion); Vasquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998) ("Evidence that is inadmissible at trial, such as inadmissible hearsay, may not be considered on summary judgment.") (citing Fed.R.Civ.P. 56(e)).
This raises the issue of whether the "understanding" raised by plaintiff can be viewed as a party admission and thereby deemed admissible. There are, however, two fundamental problems with such an interpretation. First, plaintiff fails to identify a specific statement made by either Deputy Commissioner Chasin, Commissioner Hirsch or Director Liszczak that can be attributed to defendants as a party admission. The Federal Rules of Evidence define the admission of a party as a "statement offered against a party which is his own statement in either an individual or a representative capacity." See Fed.R.Evid. 802(d)(2)(A) (emphasis added). Second, whatever Deputy Commissioner Chasin and Commissioner Hirsch may have told Director Liszczak constitutes impermissible double hearsay. Courts have routinely held such "hearsay within hearsay" to be inadmissible. See, e.g., Zaben v. Air Prods. Chems., Inc., 129 F.3d 1453, 1456-57 (11th Cir. 1997) (excluding statement allegedly made by two lower-level supervisors to plaintiff that "they [meaning higher officials at the company] was [sic] talking about getting rid of the older employees" as double hearsay); Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1003 (3rd Cir. 1988) (finding testimony by plaintiff that his supervisor told him "he thought they wanted a younger person" to be inadmissible); Cedek v. Hamiltonian Fed. Sav. and Loan Assoc., 551 F.2d 1136, 1138 (8th Cir. 1977) ("That part of [a branch manager's] statement which contains a reiteration of what someone told him [as the reason for not promoting plaintiff] is not admissible as an admission by party-opponent since the author of the statement is unknown.").
Moreover, plaintiff's deposition testimony and his Sur-Opposition Letter contradict each other with regard to the date plaintiff took the Staff Analyst civil service examination. In his deposition, plaintiff states that he took the examination in April of 1999, see Manessis Dep. at 142, which coincides approximately with May 14, 1999, the date DCAS administered the Staff Analyst exam. See Dobrwoski Decl. ¶ 4. In his Sur-Opposition Letter, plaintiff contradicts himself by stating that he took the examination in February of 2000. If plaintiff did in fact take the examination in May of 1999, the allegations contained in his Sur-Opposition Letter do not make sense. Plaintiff states that his supervisors reached an "understanding" whereby they agreed to promote plaintiff upon his taking the civil service examination in February 2000. But if plaintiff already took the examination in May of 1999, as the record reflects, there would be no need to wait until February 2000 to promote him. "[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997) (internal quotation marks and citation omitted). Accordingly, the allegations contained in plaintiff's Sur-Opposition Letter do not support plaintiff's failure to promote claim, nor do they raise a material issue of fact with respect to his retaliation claim.
C. Retaliation Based on the Filing of Complaints With the IG's Office
Plaintiff claims that he was retaliated against in violation of New York's Whistleblower Law because he filed complaints with the IG's Office. Plaintiff filed several complaints with the IG's Office beginning in 1997 through 2000. See Manessis Dep. at 61; 10/26/00 Letter from Ronald P. Calvosa, Inspector General of the DOT, Ex. T to Molfetta Decl. As a result of the various complaints filed with the IG's Office, plaintiff alleges that Commissioner Hirsch and Director Liszczak failed to promote him to Staff Analyst. See Manessis Dep. at 162, 208.
New York State Civil Service Law § 75-b states:
A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding that employee's employment because the employee disclosed to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.
Plaintiff cannot establish a prima facie Whistleblower retaliation claim because he has offered no evidence that Commissioner Hirsch or Director Liszczak were even aware that he had filed complaints with the IG's Office. See id. at 209. Commissioner Hirsch and Director Liszczak cannot be liable for retaliation if they had no knowledge of plaintiff's IG complaints. Accordingly, plaintiff's Whistleblower claim fails as a matter of law and must be dismissed.
V. PLAINTIFF'S ADA CLAIM
Plaintiff's ADA claim is based on his untimely receipt of a hearing amplification device. Plaintiff first received this device in 1997 when he worked in the Pre-K Unit. See Manessis Dep. at 136. Plaintiff requested a second device from his supervisor sometime in 2000. See Timothy Decl. ¶ 7. Timothy asked Phyllis Allen, DOT Fiscal Officer, to order the device. See id. ¶ 8. Plaintiff admits that Timothy informed him that in order to save time he could purchase the device and DOT would reimburse him, but he rejected that offer. See id. ¶ 7; Manessis Dep. at 136. After some time passed, plaintiff informed Timothy that he never received the device. See Timothy Decl. ¶ 10. In response, Timothy immediately contacted Allen regarding the status of the order. See id. Allen, who had forgotten to order the device, ordered the device immediately. See id. Plaintiff received the new hearing amplification device on July 24, 2001. See id. ¶ 11. Plaintiff claims that his untimely receipt of the second hearing device constituted disability discrimination under the ADA.
"A plaintiff alleging employment discrimination under the ADA bears the initial burden of establishing a prima facie case." Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998) (citing Wernick v. Federal Reserve Bank of N.Y., 91 F.3d 379, 383 (2d Cir. 1996)). To establish a prima facie case of discrimination because of his alleged disabilities, plaintiff must show: (1) that the employer is a covered entity; (2) that plaintiff had a disability within the meaning of the statute; (3) that he was otherwise qualified to perform the duties of the position, with or without a reasonable accommodation; and (4) that he suffered an adverse employment action because of his alleged disability. See Ryan, 135 F.3d at 869-70.
Under the ADA, a disabled individual is one with a physical or mental impairment that substantially limits one or more of his major life activities; has a record of such an impairment; or is regarded as having such an impairment. See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 193 (2002). Defendants concede that plaintiff has several impairments including hearing loss and a learning disability. The Supreme Court has held, however, that "[m]erely having an impairment does not make one disabled for purposes of the ADA." Id. at 195. Plaintiff's claim here fails because he has not shown that his impairments substantially limit any major life activity. See Colwell v. Suffolk County Police Dep't., 158 F.3d 635, 641-45 (2d Cir. 1998).
During his deposition, plaintiff admitted that neither his hearing impairment nor his learning disability prevent him from doing anything in his daily life.
Q: How does your hearing impairment affect your daily life?
A: Sometimes I speak too loud and people get annoyed. My ex-wife was telling me that you have to speak slowly, but I don't do it on purpose. I don't hear complete information. I have to pay special attention to make sure I understand or I don't miss any meaning of the words, if I miss something of one word, I just don't understand the meaning of words. I can be misinformed.
Q: Does your hearing impairment prevent you from doing anything in your daily life?
Manessis Dep. at 51-52.
Q: Does your learning disability prevent you from doing anything in your daily life?
A: Not really.
Q: Does it prevent you from doing anything at work?
A: No. When you say "prevent," what do you mean, could you clarify?
Q: When I say prevent I mean that you are not able to do it, it stops you.
A: No, it doesn't.
Id. at 55-56.
Because plaintiff's impairments do not prevent him from doing anything in his daily life, he cannot claim that he is substantially limited in any major life activity as required under the ADA. See Treglia, 313 F.3d at 722 (noting that district court dismissed police officer's ADA calim on the merits because officer did not allege that his disability (epileptic seizures) substantially limited a major life activity). As such, plaintiff cannot establish that he is disabled within the meaning of the ADA. See Ryan, 135 F.3d at 869. Because he does not come within the purview of the ADA, his reasonable accommodation claim must fail.
Assuming, arguendo, that plaintiff is disabled within the meaning of the ADA, his claim for failure to provide timely accommodation nonetheless fails. In failure to timely accommodate cases, plaintiff must prove that the delay was "motivated by discriminatory intent." Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 202 (S.D.N.Y. 1999) (summary judgment granted on employee's claim that a three-week delay in granting a request to work reduced hours violated the ADA). Although "unreasonable delay in providing an accommodation can provide evidence of discrimination," Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1017 (7th Cir. 2000), there is nothing here that suggests that the delay plaintiff experienced in receiving his hearing device was motivated by discriminatory intent. In fact, it appears to have been a negligent oversight on Allen's part. Nor can plaintiff offer any evidence to prove that defendants intentionally delayed receipt of the requested device, or that the delay affected his performance. See Powers, 40 F. Supp.2d at 202 (stating that delay must be motivated by discriminatory intent). For all of these reasons, plaintiff's ADA claim fails as a matter of law and is dismissed.
While plaintiff may be genuinely upset by his situation at work, he has offered no admissible evidence that his treatment was motivated by discriminatory animus. Accordingly, summary judgment is granted in defendants' favor and this case is dismissed. The Clerk of the Court is directed to close this case.