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Smiley v. Cassano

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Mar 20, 2012
No. 10 Civ. 3866 (RJS) (S.D.N.Y. Mar. 20, 2012)

Summary

finding that post-complaint investigations and critiques of plaintiff's professional conduct could not give rise to ADA retaliation claim because they "f[e]ll within the category of criticisms that are inherent and necessary parts of employee development within the workplace"

Summary of this case from Pistello v. Bd. of Educ. of the Canastota Cent. Sch. Dist.

Opinion

No. 10 Civ. 3866 (RJS)

03-20-2012

GARY SMILEY, Plaintiff, v. SALVATORE CASSANO, Defendant.

Plaintiff is represented by James Alexander Brown, Brown & Gropper, LLP, 275 Seventh Avenue, 25th Floor, New York, NY 10001. Defendant is represented by Jane Elizabeth Andersen, New York City Law Department, 100 Church Street, New York, New York 10007.


MEMORANDUM AND ORDER :

Plaintiff Gary Smiley brings this action pursuant to the Americans with Disabilities Act of 1990 ("ADA") and the New York City Human Rights Law ("NYCHRL") alleging that he suffered retaliation after (1) filing a disability discrimination complaint with the New York City Fire Department's ("FDNY") Equal Employment Opportunity Office ("EEO Office") in September 2008 and (2) speaking with the FDNY's EEO Office in April 2009. Defendant Salvatore Cassano, Commissioner of the FDNY, moves for summary judgment on the grounds that Plaintiff cannot establish a prima facie case of retaliation as a matter of law under either the ADA or the NYCHRL. For the reasons that follow, the Court agrees and grants Defendant's motion.

I. BACKGROUND

A. Facts

The following facts are taken from the Amended Complaint ("Am. Compl."), the parties' Local Civil Rule 56.1 Statements ("56.1 Stmt."), and the exhibits and declarations attached thereto. The facts are undisputed unless otherwise noted. Where one party's 56.1 Statement is cited, the other party does not dispute the fact asserted, has offered no admissible evidence to refute that fact, or merely objects to inferences drawn from that fact.

Plaintiff has been a paramedic with the FDNY since 1986. (Am. Compl. ¶ 9.) He responded to the tragedies at the World Trade Center on September 11, 2001 (id ¶ 10) and, from 2007 until July 2009, was assigned as a rescue paramedic with the FDNY's Emergency Medical Service ("EMS") (Def.'s 56.1 Stmt. ¶ 11.) During that period, he was assigned to EMS Station 8 in Manhattan, serving under EMS Captain J.D. DeSantis until February 2009 (id. ¶¶ 15, 24), when "DeSantis was assigned as the Duty Captain for the day shift" (id. ¶ 26). Plaintiff also worked in the Urban Search and Rescue Program ("USAR") and, from around 2003 or 2004 to the summer of 2009, served as an instructor for the New York City Community Emergency Response Team ("CERT") program. (Id. ¶¶ 112-13.)

Throughout 2008, the FDNY received a number of complaints regarding Plaintiff's "performance and his ability to continue as a rescue paramedic, including [his] failure to follow directions and his ability to get along with his partners." (Id. ¶ 46.) For instance, on or about March 30, 2008, the husband of one of Plaintiff's patients filed a civilian complaint alleging that Plaintiff had refused to take the patient to the hospital of her choice. (Id. ¶ 47.) Following a subsequent investigation of the complaint, Plaintiff was disciplined. (Id.) Moreover, on April 4, 2008, Plaintiff's supervising lieutenant lodged a complaint against him for violating FDNY procedures when Plaintiff failed to proceed to a location as ordered. (Id. ¶ 49; Decl. of Jane E. Andersen ("Andersen Decl."), dated April 15, 2011, Ex, G.) On May 6, 2008, Frances Pascale, the Chief and Division 1 Commander who oversaw EMS Station 8 during Plaintiff's time there, notified Assistant Chief of EMS John McFarland that (1) DeSantis had been ordered to have a "sit down meeting" with Plaintiff and issue him a referral, (2) EMS Captain Race, the commanding officer of the Rescue Unit and HazTac Unit, would start documenting issues that EMS personnel had with Plaintiff, and (3) Captain Race would be meeting with Plaintiff to discuss the possibility of "being removed from the Rescue truck if he continues with poor behavior." (Def.'s 56.1 Stmt. ¶ 53; see id. ¶ 20.)

Concerns with Plaintiff's performance continued into and throughout the first half of 2009. (Def.'s 56.1 Stmt. ¶¶ 54, 57-58, 62-64, 67-69.)

On or about June 26, 2008, Plaintiff had reconstructive sinus surgery "for a medical condition related to his . . . rescue activities at the World Trade Center" in September 2001. (Am. Compl. ¶ 14.) Plaintiff used accrued and annual sick leave to recuperate from his surgery through September 1, 2008. (Id. ¶ 15.)

Upon returning to work in September 2008, Plaintiff called the FDNY's EEO Office, asserting that DeSantis, who reviewed and approved his timesheets during the summer of 2008, withheld his wages because of Plaintiff's inability to work following the reconstructive surgery. (See Def.'s 56.1 Stmt. ¶ 27). Plaintiff testified that he explained the following to the EEO Office regarding his situation:

[I]n the beginning of 2008 I started to become harassed by Captain DeSantis about my absences and how [DeSantis] had threatened to remove me from the field, and remove me from my unit . . . . I explained to him that . . . my absences were documented all from the World Trade Center, and then in June my World Trade Center related surgery that was approved by the department, that I had leave approved by the department and I had vacation [.] . . . I explained to him all the payroll irregularities, my not being paid, my attempts to correct it, and my . . . feeling that I was being discriminated against by EMS Captain DeSantis because of my injuries and my illness.
(Andersen Decl. Ex. B. at 57:11-23.) Plaintiff did not tell anyone that he had filed an EEO complaint, and DeSantis testified that he never became aware that a complaint had been filed by or on behalf of Plaintiff. (Def.'s 56.1 Stmt. ¶¶ 29, 35.) However, Plaintiff testified at his deposition that in December 2008, EEO representatives conducted interviews at Station 8 with lieutenants and DeSantis, ostensibly to investigate Plaintiff's complaint. (Id. ¶¶ 31, 33.)

On December 15, 2008, following Plaintiff's September 2008 complaint, DeSantis conducted an investigation regarding an unrelated civilian complaint made against Plaintiff. (Id. ¶ 80.) Notwithstanding the alleged animus that existed between DeSantis and Plaintiff, DeSanits found that Plaintiff "acted professionally and within all established procedures and protocols" and concluded that "no action is warranted." (Id. ¶ 81.) DeSantis conducted another investigation on December 17, 2008, after a brass security cap was found dislodged from a vial of morphine following Plaintiff's shift. (Id. ¶ 82.) Following that investigation, DeSantis concluded that Plaintiff "operated within Departmental policies, procedures, protocols, and guidelines." (Id.)

Nevertheless, Plaintiff testified that after DeSantis became a Duty Captain in early 2009, he "would show up on field assignments . . . and harass me and threaten me," and that on more than six occasions, DeSantis told Plaintiff that he "was not acting accordingly," that Plaintiff was "not acting within procedure," and that he would tell Plaintiff's supervisors "that he would have [Plaintiff] brought up on charges." (Id. ¶ 83.) Additionally, Plaintiff asserted that even prior to September 2008, DeSantis had threatened to remove Plaintiff from field duty on at least three occasions. (Id. ¶ 79.)

On April 14, 2009, Lieutenant Eugene Hanretty, Plaintiff's supervisor, telephoned the EEO Office and spoke to Attorney Eugene Sohn to "seek advice on an incident relating to [P]laintiff." (Id. ¶ 39.) The EEO Office intake report, generated in connection with the call, summarizes what transpired:

This intake was initiated on April 14, 2009 when Lt. Eugene Hanretty of Station 8 called to seek advice on the incident. He stated that Paramedic Gary Smiley discovered that 2 pairs of his boots, one of which was in the garbage, were wet when he came into the station. Lt. Haretty [sic] stated that he did not know who did this. Lt. Hanretty added that none of the 16 protected categories were mentioned. Attorney Eugene Sohn advised Lt. Hanretty that his statements, without more did not appear to comprise a viable EEO matter that the EEO Office would investigate.
(Id. ¶ 40.)

Subsequently, Sohn called Plaintiff to follow up on Hanretty's call. (Id. ¶ 41.) According to the EEO Office intake report, Plaintiff discussed the incident, as relayed by Hanretty, and the long-standing problems he had with a fellow paramedic, "J.B.":

[W]hen [Plaintiff] came into work that day, he saw his boots had been urinated on and that his second pair of boots had cranberry juice in them. He suspected that the acts were done by Paramedic J.B. but stated that he could not prove it. He did not speak to Paramedic J.B. about the incident. Paramedic Smiley stated that he told Lt. Hanretty what happened and that an unusual occurrence report was opened.
[Plaintiff] stated that he did not believe that any of the EEO protected categories were at issue and stated that his problems with Paramedic J.B. stemmed from work-related issues. Specifically, he stated that during the time Paramedic J.B. worked at Station 8, [Plaintiff] believed that Paramedic J.B. was lazy, did not get along with others, and did not follow regulations. He stated there were no problems between the two men regarding race or any other protected category. He added that he never heard Paramedic J.B. make any racist remarks or jokes.
(Id. ¶ 41.) Having determined that the matter was not a discrimination complaint, the EEO Office referred the matter to EMS Operations for further handling. (Id. ¶ 42.) Assistant Chief McFarland testified that he never learned of Plaintiff's April 2009 call. (Id. ¶¶ 43-45.)

In either June or July of 2009, McFarland removed Plaintiff from the Rescue Unit on the recommendations of EMS Captain Race and Dr. Gonzalez, the Associate Medical Director for the FDNY's Office of Medical Affairs, that Plaintiff "should no longer be functioning in the rescue unit." (Id. ¶ 87.) "As a result of [P]laintiff being removed from the rescue unit, he was not eligible to participate in USAR." (Id. ¶ 86.) Moreover, Plaintiff testified that when CERT classes began after the summer of 2009, the lieutenant in charge of the program informed him that he would not be a site leader or site instructor - instead, he would be only a "topic instructor" and was eligible to teach fewer classes as a result. (Id. ¶¶ 113, 115.)

B. Procedural History

On or about April 12, 2010, Plaintiff received a letter from the Equal Opportunity Commission informing him of his right to sue Defendant. Plaintiff then commenced this action by filing a complaint on May 11, 2010. Defendant filed a motion for summary judgment on March 11, 2011; however, on April 1, 2011, the Court denied the motion without prejudice as moot because it had granted Plaintiff's request to file an amended complaint. Accordingly, Plaintiff filed his amended complaint on April 4, 2011. On April 15, 2011, Defendant filed both his answer to the amended complaint and the instant motion for summary judgment. The motion was fully briefed as of June 13, 2011.

II. LEGAL STANDARD

Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, a court shall grant a motion for summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of showing that it is entitled to summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court "is not to weigh evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks omitted); accord Anderson, 477 U.S. at 248.

Courts must exercise "an extra measure of caution" in determining whether to grant summary judgment in a case involving allegations of employment discrimination "because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001). However, even in an employment discrimination case, "a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). The ultimate test remains "whether the evidence can reasonably support a verdict in plaintiff's favor." James v. N.Y. Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000).

III. DISCUSSION

A. Overall Framework for Retaliation Claims

The ADA "prohibits, inter alia, retaliation against any individual who has asserted rights under the ADA." Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999); see 42 U.S.C. § 12203(a) ("No person shall discriminate against any individual because such individual . . . made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.").

In analyzing ADA retaliation claims, the Court applies the same burden-shifting framework as it applies to Title VII retaliation claims. Sarno, 183 F.3d at 159; Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). Thus, to establish a prima facie case of retaliation under the ADA, Plaintiff must show that (1) he engaged in a "protected activity"; (2) his employer was aware of the activity; (3) the employer took an "adverse employment action" against him; and (4) a causal connection exists between the protected activity and the adverse employment action. See, e.g., Borksi v. Staten Island Rapid Transit, 413 F. App'x 409, 410 (2d Cir. 2010). Although the burden at the prima facie stage is de minimis, Plaintiff must proffer at least competent evidence of circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005); Cronin v. Aetna Life Ins., 46 F.3d 196, 204 (2d Cir. 1995).

The elements for retaliation under the NYCHRL differ only in "that the plaintiff need not prove any 'adverse' employment action; instead, he must prove that something happened 'that would be reasonably likely to deter a person from engaging in protected activity.'" Jimenez v. City of New York, 605 F. Supp. 2d 485, 528 (S.D.N.Y. 2009) (quoting NYCHRL § 8-107(7)).

If Plaintiff meets his burden of establishing a prima facie case, the burden shifts to Defendant to proffer a "legitimate, nonretaliatory reason for the challenged employment decision." Valtchev v. City of New York, 400 F. App'x 586 (2d Cir. 2010) (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)) (internal quotation marks omitted). If Defendant proffers such a reason, the burden shifts back to Plaintiff to provide evidence "sufficient to permit a rational factfinder to conclude that the employer's explanation is merely a pretext for impermissible retaliation." Cifra, 252 F.3d at 216.

B. Prima Facie Case

1. Protected Activity

With respect to the first element of a retaliation claim, in order to establish a prima facie case, Plaintiff must prove that he engaged in a "protected activity." Protected activity typically "refers to action taken to protest or oppose statutorily prohibited discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000); accord Treglia v. Town of Manlius, 313 F.3d 713, 719-20 (2d Cir. 2002) ("[Plaintiff's] attempts to assert his rights against discrimination are protected activities, including his alleged complaints to [his supervisor], his ultimate filing of federal and state administrative charges . . . and his efforts with the NYDHR to investigate his claims."); Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) ("[F]iling of a complaint [alleging discrimination] with the EEOC is an activity protected by the ADA."). In order to prove that actions were so taken, Plaintiff must demonstrate that he had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Wimmer v. Suffolk Cnty. Police Dep't, 176 F.3d 125, 134 (2d Cir. 1999); accord Kessler v. Weschester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 211 (2d Cir. 2006).

Defendant concedes for purposes of this summary judgment motion that Plaintiff engaged in protected activity in September 2008 when he called the EEO Office and alleged disability discrimination against his commanding officer, Captain DeSantis. (Def.'s Mem. in Supp. at 4.) However, Defendant maintains that Plaintiff did not engage in protected activity in April 2009 when he was interviewed by Sohn following Lt. Hanretty's call to the EEO Office. The Court agrees.

Plaintiff's participation in the EEO Office investigation in April 2009 was not "protected activity" under either the ADA or the NYCHRL. The record makes clear that neither Plaintiff nor his supervisor "protested" or "opposed" statutorily prohibited discrimination by calling the EEO Office and speaking with EEO personnel. According to the EEO Office intake form produced in connection with Lt. Hanretty's phone call, Lt. Hanretty called to "seek advice on an incident" and noted during the call that "none of the 16 [EEO] protected categories were mentioned," (Def.'s 56.1 Stmt. ¶¶ 39-40.) When EEO Office Attorney Sohn called Plaintiff on April 28, 2009 to follow up on Hanretty's call, Plaintiff himself stated that he had "long[-]standing problems" with fellow paramedic J.B. but conceded that there "were no problems between the two men regarding race or any other protected category." (Id. ¶ 41.) He further stated that "he never heard [p]aramedic J.B. make any racist remarks or jokes." (Id.) Plaintiff has put forth no evidence demonstrating that either he or Lt. Hanretty protested about discrimination of any kind, much less disability discrimination. Therefore, Plaintiff has failed to meet even the de minimis burden of proving that he engaged in a protected activity in April 2009.

Plaintiff cites to several cases he claims stand for the proposition that an employer's internal investigation, whether catalyzed by the employee or his co-worker's complaint, qualifies as a "protected activity." (Pl.'s Opp'n at 14-15.) However, Plaintiff's argument is based upon a misreading of the case law. Although it is true that an employee claiming unlawful retaliation may, under certain circumstances, rely on a complaint filed by a co-worker to satisfy the "protected activity" element of the prima facie case, that complaint must still constitute action "to protest or oppose statutorily prohibited discrimination." See Cruz, 202 F.3d at 566; see also Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011) (holding that an employee suffered retaliation when his fiancée filed a charge alleging sex discrimination); Crawford v. Metro. Gov't of Nashville, 129 S. Ct. 846 (2009) (holding that the retaliation provision of Title VII extends to an employee who speaks out about discrimination in an employer's internal investigation); Jute, 420 F.3d at 175 (holding that a plaintiff who supported a co-worker's Title VII discrimination lawsuit engaged in a protected activity). As stated above, as to Lt. Hanretty's call to the EEO Office, Plaintiff has failed to meet that evidentiary showing.

Plaintiff's additional argument - that whether Plaintiff "believed that Lt. Hanretty's complaint constituted a claim of actual discrimination is irrelevant" - is also unavailing. (Pl.'s Opp'n at 16.) The issue is not whether the April 2009 complaint and investigation was based upon actual discrimination but on whether Plaintiff or Lt. Hanretty alleged discrimination whatsoever or possessed a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." See Wimmer, 176 F.3d at 134. Clearly, Plaintiff and Lt. Hanretty alleged no such discrimination or violation of law in April 2009. Therefore, only Plaintiff's actions in September 2008 qualify as "protected activity."

2. Employer Awareness

To meet the second element of the prima facie case, Plaintiff need not demonstrate that specific individuals or segments within the FDNY were aware of Plaintiff's protected activity in 2008. Rather, Plaintiff need only demonstrate "general corporate knowledge" of his having engaged in a protected activity. See Kessler, 461 F.3d at 211; Gordon v. NYC Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000); Alston v. NYC Transit Auth., 14 F. Supp. 2d 308, 311 (S.D.N.Y. 1998) ("In order to satisfy the second prong of her retaliation claim, plaintiff need not show that individual decision-makers . . . knew that she had filed . . . [an] EEOC complaint.).

Even though Plaintiff testified that he did not tell anyone that he filed a complaint with the EEO office and DeSantis and McFarland each testified that they never became aware that a complaint had been filed by or on behalf of Plaintiff (Def.'s 56.1 Stmt 29, 35, 43-45), Plaintiff's call to the EEO Office and lodging of his disability discrimination complaint with an EEO Officer suffice for purposes of demonstrating "general corporate knowledge." (See id. ¶ 27-28.) At least at this stage of the analysis, Plaintiff need not show that Captain DeSantis or any other individuals within the FDNY had specific knowledge of the complaint. Accordingly, Plaintiff has satisfied his burden with respect to the second element.

3. Adverse Employment Action

For the third element of the prima facie case for retaliation, Plaintiff must prove that the FDNY took an "adverse employment action" against him. The Second Circuit has "defined adverse employment action broadly to include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand." Lovejoy-Wilson, 263 F.3d at 223 (internal quotation marks omitted). Adverse employment actions may even include "negative evaluation letters, [or] express accusations of lying," Id. (internal quotation marks omitted).

However, "[a]n employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). To that end, the Second Circuit has held that "empty verbal threats do not cause an injury, and therefore are not materially adverse actions, where they are unsupported by any other actions." Tepperwien v. Entergy Nuclear Operations, 663 F.3d 556, 571 (2d Cir. 2011) (internal quotation marks omitted). Accordingly, mere criticism of an employee is not sufficient to be considered an "adverse employment action." See Weeks v. N.Y. State Div. of Parole, 273 F.3d 76, 86 (2d Cir. 2001) ("It hardly needs saying that criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action."), abrogated on other grounds, Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Mabry v. Neighborhood Defender Serv., 769 F. Supp. 2d 381, 393 (S.D.N.Y. 2011) ("Negative evaluations or reviews, without accompanying tangible harm or consequences, do not constitute materially adverse action altering the conditions of employment.").

As an initial matter, Defendant concedes for purposes of this motion that "[P]laintiff's removal from [the] Rescue Unit and the Urban Search and Rescue Program, and the change in plaintiff's voluntary duties as an instructor constitutes adverse employment actions." (Def.'s Mem. in Supp. 4.) He disputes, however, that Captain DeSantis's conduct in early 2009 also constitutes an adverse employment action. For the reasons that follow, the Court agrees with Defendant.

As noted above, following Captain DeSantis's December 15, 2008 investigation "regarding a civilian complaint against [P]laintiff," Captain DeSantis found that Plaintiff "acted professionally and within all established procedures and protocols, and no action is warranted." (Def.'s 56.1 Stmt. ¶ 81.) Similarly, on December 17, 2008, following an additional investigation in response to a dislodged brass security cap found after Plaintiff's tour, Captain DeSantis determined that Plaintiff "operated within Departmental policies, procedures, protocols, and guidelines." (Id. ¶ 82.) Nonetheless, Plaintiff testified that in early 2009, Captain DeSantis "would show up on [Plaintiff's] field assignments," increasingly harassing and threatening him. (Id. ¶¶ 80, 83.) Additionally, Plaintiff testified that Captain DeSantis told him on more than six occasions that Plaintiff "was not acting accordingly," that [P]laintiff was "not acting within procedure," and that he would tell Plaintiff's supervisors "that he would have [Plaintiff] brought up on charges." (Id. ¶ 83.)

Although Captain DeSantis did make investigative reports regarding Plaintiff's professional conduct, none of his formal conclusions were in any way "adverse" or critical of Plaintiff's performance, nor would they "be reasonably likely to deter a person from engaging in protected activity." Jimenez, 605 F. Supp. 2d at 528 (quoting NYCHRL § 8-107(7)). Moreover, Plaintiff's allegations regarding Captain DeSantis "harassing" and "threatening" him fall short of "adverse employment actions," even broadly construed at the summary judgment stage. Rather, they fall within the category of criticisms that are inherent and necessary parts of employee development within the workplace. Therefore, while Plaintiff's removal from the Rescue Unit and USAR Program and his change in voluntary duties constitute adverse employment actions, Captain DeSantis's conduct post-September 2008 does not.

4. Causal Connection

To meet the last element of the prima facie case of retaliation, Plaintiff must prove that a causal connection exists between the protected activity in September 2008 and the adverse employment actions described above. Causation can be proved either: "(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by defendant." Gordon, 232 F.3d at 117.

Here, Plaintiff has not introduced any direct evidence of a causal connection between his September 2008 complaint and (1) his removal from the Rescue Unit, (2) his removal from the USAR program, or (3) the change in his voluntary duties as an instructor. The Court therefore considers whether indirect evidence shows a causal connection, applying the only standard by which Plaintiff could establish a causal connection: "that the protected activity was closely followed in time by the adverse [employment] action." Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996).

While the Second Circuit has articulated no "bright line" rule for when an alleged retaliatory action occurs too far in time from the protected activity to be considered causally connected, Gorman-Bakos v. Cornell Co-op Extension of Schenectady City, 252 F.3d 545, 554 (2d Cir. 2001), it is well settled that when "mere temporal proximity" is offered to demonstrate causation, the protected activity and the adverse action must occur "very close" together, Clark County School District v. Breeden, 532 U.S. 268, 273-74 (2001) (internal quotation marks omitted). "[D]istrict courts within the Second Circuit have consistently held that the passage of two to three months between the protected activity and the adverse employment action does not allow for an inference of causation." Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 275 (S.D.N.Y. 2007) (collecting cases); accord Ragin v. E. Ramapo Cent. Sch. Dist., No. 05 Civ. 6496 (PGG), 2010 WL 1326779, at *24 (S.D.N.Y. Mar. 31, 2010).

Here, Plaintiff alleges that he was not removed from the USAR program until June 2009, that he was not removed from the Rescue Unit until July 2009, and that he did not undergo a change in his duties as a volunteer with the CERT program until the Summer of 2009. (Def.'s 56.1 Stmt. ¶¶ 70, 78; Pl.'s Opp'n at 9.) These adverse employment actions occurred well after Plaintiff's September 2008 complaint and, therefore, well outside of the acceptable outer limits for demonstrating a temporal proximity to the protected activity. (Def.'s 56.1 Stmt. ¶¶ 46-47, 49, 53.) Accordingly, Plaintiff has failed to put forth sufficient evidence to satisfy the fourth element of the prima facie case.

Even assuming arguendo that any of Plaintiff's allegations regarding Captain DeSantis's conduct in early 2009 would, under the NYCHRL, "be reasonably likely to deter a person from engaging in protected activity," Jimenez 605 f. Supp. 2d at 528 (quoting NYCHRL § 8-107(7)), Plaintiff still cannot demonstrate a causal connection between that conduct and the September 2008 complaint. --------

C. Legitimate Non-Retaliatory Reason and

Pretext for Impermissible Retaliation

Even if Plaintiff could meet his burden of establishing a prima facie case, Defendant has amply demonstrated a legitimate, nonretaliatory reason for the challenged employment decisions, and Plaintiff has failed to provide further evidence from which a rational factfinder could "conclude that the employer's explanation is merely a pretext for impermissible retaliation." Cifra, 252 F.3d at 216; see also El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per curiam) ("[A] plaintiff must come forward with some evidence of pretext in order to raise a triable issue of fact.").

It is undisputed that Plaintiff experienced a myriad of performance issues both prior to and after September 2008. (See Def.'s 56.1 Stmt. ¶¶ 46-49, 51-55, 57-58, 62-64, 67-69.) For example, as noted above, Plaintiff was disciplined following the lodging of a complaint against him in March 2008 (id. ¶ 47), and in April 2008, Plaintiff's supervising lieutenant lodged a complaint against him for violating FDNY procedures (id. ¶ 49; Andersen Decl. Ex. G). In May 2008, Pascale notified DeSantis, inter alia, about Plaintiff's "poor behavior" and that Captain Race would start documenting issues that EMS personnel had with Plaintiff. (Def.'s 56.1 Stmt. (Id. ¶ 53.) In December 2008, Plaintiff was observed, despite prior warning, "operating at the scene of an assignment not wearing appropriate uniform and footwear in violation of procedure." (Id. ¶ 55.) On May 5, 2009, Plaintiff received a "command discipline for failing to complete all necessary paperwork involved in a narcotics transfer," and approximately one week later he received a second discipline for a similar incident. (Id. ¶¶ 62-63.) Also in May 2009, Plaintiff was observed wearing an unauthorized pair of boots. (Id. ¶ 67.) In June 2009, Plaintiff was placed on "patient care restriction" - though his rights were subsequently restored - after a review of patient care reports by an EMS Office of Medical Affairs physician. (Id. ¶ 68.)

In the face of such employee performance issues, an employer is not powerless to act. See, e.g., Petrisch v. J.P. Morgan Chase, 789 F. Supp. 2d 437 (S.D.N.Y. 2011) ("An employer may legitimately take adverse action against an employee when his performance is unsatisfactory or fails to meet expectations."). Particularly given Plaintiff's long litany of performance issues, the Court has no difficulty in concluding that Defendant has put forth a legitimate, non-retaliatory reason for Plaintiff's adverse employment actions.

Plaintiff, however, has failed to meet his burden of demonstrating that Defendants' reason for those adverse employment actions is pretextual. Even assuming that Plaintiff could prove causation through mere temporal proximity at the prima facie stage, such temporal proximity alone would be insufficient to rebut Defendant's legitimate non-retaliatory reason for the challenged employment decisions. See Galimore v. City Univ. of N.Y. Bronx Cmty. Coll, 641 F. Supp. 2d 269, 289 (S.D.N.Y. 2009) ("While temporal proximity between Plaintiff's complaints and the termination decision infer causation at the prima facie stage, 'mere temporal proximity' has been found by this Court to be insufficient to [ultimately] support a claim of retaliation at the summary judgment stage, at least where the defendant proffers a legitimate reason for the plaintiff's discharge with evidentiary support therefor."); see also Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) ("Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.").

Plaintiff argues that Defendant's proffered reasons for his adverse employment actions are pretextual because, inter alia, he had a positive reputation and received an overall rating of "very good" in his 2008 year-end paramedic evaluation. (Pl.'s Opp'n at 20-21.) However, Defendant claims not that Plaintiff was ill-suited to be a paramedic, but merely that FDNY had a legitimate basis for removing Plaintiff from his positions in the selective USAR program and Rescue Unit as well as from his voluntary duties as a CERT instructor. Plaintiff never rebuts this assertion with any evidence showing that Defendant's reasons for the adverse employment action were false or designed to mask a retaliatory animus. In fact, the record shows that Plaintiff was only removed from the Rescue Unit and USAR program after his performance failed to improve following a series of warnings. (See Def.'s 56.1 Stmt. Exs. J, W.) Therefore, had Plaintiff met his burden of establishing a prima facie case, which he has not, he has still not demonstrated that Defendant's reasons for the adverse employment actions are pretextual.

Accordingly, Defendant has shown that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law.

IV. CONCLUSION

For the foregoing reasons, the Court grants Defendant's motion for summary judgment. The Clerk of the Court is respectfully directed to terminate the motion located at Doc. No. 25 and to close this case. SO ORDERED.

/s/_________

RICHARD J. SULLIVAN

United States District Judge Dated: March 20, 2012

New York, New York

* * *

Plaintiff is represented by James Alexander Brown, Brown & Gropper, LLP, 275 Seventh Avenue, 25th Floor, New York, NY 10001.

Defendant is represented by Jane Elizabeth Andersen, New York City Law Department, 100 Church Street, New York, New York 10007.


Summaries of

Smiley v. Cassano

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Mar 20, 2012
No. 10 Civ. 3866 (RJS) (S.D.N.Y. Mar. 20, 2012)

finding that post-complaint investigations and critiques of plaintiff's professional conduct could not give rise to ADA retaliation claim because they "f[e]ll within the category of criticisms that are inherent and necessary parts of employee development within the workplace"

Summary of this case from Pistello v. Bd. of Educ. of the Canastota Cent. Sch. Dist.
Case details for

Smiley v. Cassano

Case Details

Full title:GARY SMILEY, Plaintiff, v. SALVATORE CASSANO, Defendant.

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Mar 20, 2012

Citations

No. 10 Civ. 3866 (RJS) (S.D.N.Y. Mar. 20, 2012)

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