From Casetext: Smarter Legal Research

Wilson v. New York City Department of Transportation

United States District Court, S.D. New York
Sep 27, 2005
01 Civ. 7398 (RJH) (S.D.N.Y. Sep. 27, 2005)

Summary

denying request to change shift did not amount to an adverse employment action

Summary of this case from Merisier v. Kings Cnty. Hosp.

Opinion

01 Civ. 7398 (RJH).

September 27, 2005


MEMORANDUM OPINION AND ORDER


This is an employment discrimination action. Plaintiff Wilbert Wilson alleges that defendant New York City Department of Transportation ("DOT") violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. ("Title VII"), Section 1981 of Title 42 of the United States Code, and the New York Human Rights Law, codified at N.Y. Exec. Law § 290 et seq. ("SHRL"), by (i) discriminating against him on the basis of his race in the terms and conditions of his employment; (ii) subjecting him to a hostile workplace environment; and (iii) retaliating against him when he complained about the discrimination. Defendant has moved for summary judgment on all claims, contending, among other things, that plaintiff (i) failed to perform his work in a satisfactory manner; (ii) was not subjected to any adverse employment action; and (iii) even assuming that plaintiff's workplace was hostile, that liability cannot be imputed to the DOT.

With the exception of plaintiff's hostile work environment claim, the motion is granted.

I. Procedural History

The procedural history of this case is notable only for its considerable delay, most of which is attributable to plaintiff and his councel. Over the last two years, plaintiff has failed to meet numerous deadlines; has lost touch with attorney for several months at a time; and finally, has failed to file a timely opposition to the DOT's summary judgment motion. On this basis, the DOT has asked the Court to treat its motion as if it were unopposed, pointing out that the motion has been pending since December 2004 and that plaintiff has had no fewer than five deadline extensions to this point. Having reviewed the procedural history of the case, and based in particular on the following facts, the Court grants the DOT's request.

At the close of discovery, by Order dated November 14, 2003, Magistrate Judge Pitman warned plaintiff that a "continued and unjustified failure" to comply with an impending deadline would result in a recommendation that the case be dismissed for failure to prosecute. [November 14, 2003 Order, Docket #15]. On the last day of that deadline, December 12, 2003, plaintiff's counsel sought and was denied an extension. Shortly thereafter, as indicated in the November 14 Order, Judge Pitman recommended that the case be dismissed for failure to prosecute, issuing a Report and Recommendation to that effect on January 30, 2004. [Docket #17]. This Court declined to adopt that recommendation, but sanctioned plaintiff and set a briefing schedule for the instant motion. [Docket ##26,29].

The original briefing schedule required plaintiff to respond to the motion by January 21, 2005. As that deadline approached, plaintiff requested and was granted an extension until February 15, 2002. [Docket #36]. Several additional requests followed and were granted: to February 22, 2005 [Docket #38]; then to March 7, 2005 [Docket #39]; and finally to March 14, 2005 [Docket #40]. More than two months after the last of these deadlines expired, on May 18, 2005, plaintiff contacted the Court to explain that although he had missed the final extended deadline, and although he had been unable to contact his attorney for some time, he still wished to oppose the DOT's motion. In reliance on these representations, the Court again extended the deadline, this time to June 15, 2005; the Court also directed the parties to appear for a conference on July 15, 2005 in order to address the issue of whether plaintiff was represented by counsel or was proceeding pro se. [Docket #42].

Plaintiff again failed to meet the extended deadline. Rather, on July 15, 2005, he appeared at the scheduled conference to explain that — despite several renewed efforts — he was still unable to contact his attorney. He also reiterated that he wished to proceed with the case, whether pro se or otherwise. At the conclusion of the conference, as well as by Order dated July 18, 2005, the Court advised plaintiff that he would have one final opportunity to file opposition papers, and set a deadline of August 12, 2005. [Docket #46]. Because it was still unclear whether plaintiff was represented by counsel, the Court also directed the DOT to serve plaintiff, no later than July 22, 2005, with a "Notice To Pro Se Litigant Opposing Motion for Summary Judgment" in accordance with Local Rule 56.2. The DOT complied with this order. [Docket #45].

As on all past occasions, however, plaintiff missed the August 12, 2005 deadline. Approximately three weeks later, on August 31, 2005, the Court received a letter from plaintiff's counsel. According to the letter, counsel first "mailed" plaintiff's opposition to the DOT on March 7, 2005, a full five months prior to the Court's final August 12 deadline. (Aug. 31, 2005 Letter from Sonia Metellus to the Court). Although the letter indicates that this first mailing was addressed to the DOT, it makes no mention of whether opposition papers were filed with the Court at the same time, as was plainly required by the Court's February 23, 2005 extension. [Docket # 39]. In any case, the letter indicates that plaintiff's opposition papers never reached the DOT, allegedly because an assistant neglected to include a zip code with the address. ( Id.).

Whatever the cause of the failed effort, the letter goes on to state that plaintiff's counsel did not discover the problem for approximately five months, until early August 2005. The letter does not explain what prevented plaintiff's counsel during those five months from (i) complying with the Courts May 18, 2005 Order, either by submitting opposition papers by June 15, 2005, or by appearing for the conference on July 15, 2005 [Docket # 42]; or (ii) complying with the Court's July 18, 2005 Order, which clearly stated that plaintiff shall "file any opposition to defendant's motion for summary judgment, whether acting pro se or through counsel" by August 12, 2005. [Docket #46 (emphasis added)]. Each of these Orders was, of course, sent to plaintiff's counsel.

The letter goes on to state that plaintiff's counsel made a second attempt to serve opposition papers on the DOT on August 12, 2005, this time by "mail[ing] . . . [them] . . . still in [their] original unsealed envelope". (August 31, 2005 Metellus Letter). Again, however, the mailing never made it. Instead, according to the letter, the envelope was "returned" by regular mail, unopened but "severely" torn, allegedly because an assistant in counsel's office "apparently addressed it to the Court instead of [the DOT]". ( Id.). Shortly thereafter, on August 18, 2005, counsel writes that she made a third effort to mail opposition papers to the DOT. ( Id.). The letter concludes by noting that counsel has "proof" of both the second and third mailings, and asks the Court to accept opposition papers by "personal deliver[y]". ( Id.).

If that is in fact true, the Court never received the letter.

In response to Metellus' August 31 letter, by declaration dated August 29, 2005, the DOT offers the following and much different account. (August 29, 2005 Letter and Declaration of Pamela Richardson ("Richardson Decl.")). According to the declaration, plaintiff called the DOT on August 16, 2005 to ask whether his opposition papers were received; counsel told him they had not been. (Richardson Decl., ¶ 3). The next day, on August 17, 2005, the DOT received a voicemail from plaintiff's counsel, explaining both that she still represented plaintiff, and that opposition papers had been mailed to the DOT on August 12. ( Id., ¶ 4). Plaintiff's counsel also offered to "walk down" the papers the next day if they had not yet been received. In response to this message, the DOT attempted to contact plaintiff's attorney on August 17, 18 and 19, on each occasion leaving messages to the effect that opposition papers had not yet been received, and asking that plaintiff's counsel personally deliver them, as offered. Despite these requests, as of August 29, 2005, the DOT had not seen plaintiff's opposition papers.

Before having the opportunity to address either communication, on September 6, 2005, the Court received a second letter from plaintiff's counsel, this one addressed to the DOT and dated August 12, 2005. Presumably, this was the "proof" referred to in the August 31 letter — in other words, evidence that opposition papers were actually mailed to the DOT on August 12, 2005. Along with this letter, the Court received a copy of plaintiff's opposition materials, which include (i) the Declaration of Sonia Metellus; (ii) plaintiff's Rule 56.1 Statement; (iii) and plaintiff's Memorandum of Law in opposition to the DOT's motion for summary judgment. As noted, supra, the DOT has asked the Court to ignore these materials and the Court has granted that request. (August 29, 2005 DOT Letter).

In doing so, the Court relied in particular upon the following facts: (1) plaintiff is represented by counsel, and is therefore not entitled to the deference typically afforded to pro se litigants; (2) plaintiff's counsel has previously been sanctioned in this action for failing to comply with deadlines [Docket #26]; (3) from January 21, 2005 to June 15, 2005, plaintiff was afforded no fewer than five extensions to submit opposition papers; (4) the Court gave plaintiff clear and explicit notice at the July 15, 2005 conference, and reaffirmed that notice in its July 18, 2005 Order, that plaintiff would have one final opportunity, until August 12, 2005 to file opposition papers; and (5) even crediting plaintiff's counsel's August 31 and September 6 letters, it is clear that plaintiff's counsel failed to file opposition papers by August 12, 2005, as required by the Court's July 18, 2005 Order. Simply put, plaintiff, represented by counsel, has had several opportunities to submit his opposition in this case; he was warned of the consequences of failing to do so; and he will not be allowed to avoid these consequences simply because his attorney failed to act professionally.

II. Factual Background

As noted, the Court will proceed as if plaintiff's counsel has failed to provide a counterstatement of material facts as required under Local Rule 56.1(b), or to contest any of those facts contained in defendant's Rule 56.1 Statement. Although Local Rule 56.1(c) provides that non-controverted material facts are to be deemed admitted, when considering an unopposed motion the Second Circuit requires district courts to confirm that factual statements are adequately supported by evidence in the record; unsupported facts are to be disregarded. Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2nd Cir. 2004); Giannullo v. City of New York, 322 F.3d 139, 140-143 (2nd Cir. 2003). This Court's review of the record, guided by defendant's Rule 56.1 Statement, shows that the following facts are both undisputed and adequately supported. Because this is a motion for summary judgment by the defendant, these facts are presented in the light most favorable to plaintiff. Ertman v. United States, 165 F.3d 204, 206 (2nd Cir. 1999). Citations to the record are provided for those facts most critical to the Court's decision.

A. Plaintiff's Work History

Plaintiff has been employed by the DOT for approximately 25 years, since October 2, 1980. During that time he has held a variety of positions, beginning with "debris remover". (December 30, 2002 Deposition of Wilbert Wilson, p. 16 ("Wilson Dep.")). He has also been assigned to several different worksites, or "yards", including his current worksite, the Central Depot in Kings County (the "Central Depot") where he holds the title of a Highway Repairer. (Def's Amend. Local Civil Rule 56.1 Statement, ¶¶ 1, 3 ("Rule 56 State.")). This action involves alleged discrimination that occurred immediately before plaintiff was transferred to the Central Depot, while he was stationed at the DOT's Kew Loop Yard in Queens ("Kew Loop"), where he worked from June 1999 to October 2002. (Rule 56 State., ¶¶ 7-8).

As a Highway Repairer plaintiff is responsible for repairing potholes, fixing and installing highway fence, and maintaining roadside vegetation, among other things. (Wilson Dep., p. 34). Plaintiff has neither been demoted nor had his salary reduced since filing this action, or any of the agency complaints related to this action. (Rule 56 State., ¶ 86).

As noted at the outset, the DOT argues that summary judgment is appropriate for many reasons; primary among them, though, is that plaintiff failed to perform his job in a satisfactory manner, and therefore cannot make out a prima facie case of retaliation or disparate treatment. Although the Court agrees with that conclusion, it does so for reasons unrelated to plaintiff's job performance. Accordingly, with one or two limited exceptions, the Court declines to address the issue of plaintiff's disciplinary history, his alleged "insubordination", or his well-documented "inability to get along with co-workers". ( See Rule 56 State., ¶¶ 9-36). Instead, the Court will turn directly to plaintiff's allegations, returning to his disciplinary history only where doing so will provide necessary context.

B. The Alleged Conditions at Kew Loop

Plaintiff was one of approximately 30 DOT employees at Kew Loop. This number was divided between "seasonal" workers, essentially probationary workers who work ten months of the year, and permanent employees such as plaintiff. (Bencivengo Dep., pp. 13-15; Wilson Dep., p. 99). The organizational structure of the yard, as is relevant to this case, was as follows: Thomas Bencivengo was the highest ranking employee at the yard, and held the title of District Supervisor (Rule 56 State., ¶ 15; Wilson Dep., p. 45); John Brostowski was one of approximately five supervisors reporting to Bencivengo, (Rule 56 State., ¶ 25; Bencivengo Dep., p. 25); and plaintiff was one of approximately fifteen permanent workers, all of whom reported to whichever supervisor was managing the particular "work gang" to which the employee was assigned at the time. (Bencivengo Dep., p. 39). The permanent workforce at Kew Loop included both African-American and Caucasian employees.

According to plaintiff, Bencivengo and Brostowski — both of whom are Caucasian — engaged in a pattern and practice of discrimination at Kew Loop, in most cases targeted specifically at plaintiff. Collectively, plaintiff contends that these discriminatory acts are sufficient to establish his claims for disparate treatment, retaliation, and hostile work environment. For organizational purposes, the Court will group plaintiff's allegations into four general categories, which will be addressed in the following order: (i) allegations of generally poor or unfair treatment; (ii) denial of overtime; (iv) failure to transfer; and (v) overtly discriminatory acts or language.

1. Alleged Poor Treatment

This first category comprises plaintiff's allegations that he received poor work assignments, was the subject of unfair or unduly harsh criticism, and was intentionally humiliated. Plaintiff contends that Bencivengo and Brostowski habitually gave him poor work assignments, such as garbage patrol work or grass cutting detail, allegedly because "blacks are not smart enough to work" on better assignments. (Compl., ¶¶ 34-35; Wilson Dep., pp. 48, 68, 136-137). At his deposition, however, plaintiff acknowledged the speculative nature of this allegation, indicating that it was "just hearsay" he picked up from unspecified third parties. (Wilson Dep., p. 56). Plaintiff also testified that he received poor assignments because Bencivengo didn't like him, not because of his race. (Wilson Dep., pp. 140-141). There is no other evidence in the record that plaintiff received work of a different quality or quantity than similarly situated Caucasian employees. Accordingly, the Court considers this first claim to be abandoned. See, e.g., Phipps v. Comprehensive Cmty. Dev. Corp., 2005 U.S. Dist. LEXIS 1672, at *37-38 (S.D.N.Y. Feb. 2, 2005) (excluding derogatory statements made about the plaintiff to persons other than the plaintiff as hearsay on a summary judgment motion).

Plaintiff next contends that Brostowski and Bencivengo singled him out for harsh treatment during the workday, and that Bencivengo directed other supervisors to treat plaintiff unfairly. (Wilson. Dep., pp. 56, 62). For example, on August 15 and September 12, 2000, plaintiff contends that Brostowski yelled at him for drinking water while at work, allegedly after Bencivengo told him to "write up" plaintiff for "every infraction". (Compl., ¶¶ 19, 23; Wilson Dep., pp. 56, 106, 118). And on September 9, 2000, plaintiff alleges that he was forced to work as Caucasian workers stood by, explaining that Bencivengo pulled up in a truck and yelled to the crew that he "just want[ed] to see [plaintiff] working, no one else." (Compl., ¶ 22). Again, however, plaintiff testified at his deposition that he had no evidence that Bencivengo gave orders to treat plaintiff unfairly; rather, he insisted that it was true simply because that was the "type of guy" Bencivengo is. (Wilson Dep., pp. 118-119).

Finally, plaintiff contends that Bencivengo intentionally humiliated him on several occasions, either directly or by manipulating others to do so. On April 10, 2000, for example, plaintiff contends that Bencivengo intentionally humiliated him by hiding his timecard. (Compl., ¶ 8). When plaintiff approached Bencivengo to ask where his card was, he contends that Bencivengo told him to "look in the supervisors' rack" and then burst out laughing in front of other DOT employees. ( Id.). Plaintiff acknowledged at his deposition, however, that he had no evidence that Bencivengo hid the card aside from his general speculation that "nothing [went] on" at Kew Loop without [Bencivengo's] knowledge. (Wilson Dep., pp. 83-84).

Again on September 12, 2001, plaintiff alleges that Bencivengo ridiculed him in front of other yard supervisors, this time for filling out his timecard incorrectly, and then told plaintiff to "get the fuck out of [his office]". (Compl., ¶ 8, 28; Wilson Dep., p. 78-80).

Finally, on May 8, 2000, plaintiff contends that Bencivengo again humiliated him, this time by manipulating one of plaintiff's co-workers, Carlos Torres. According to plaintiff, Torres approached him as he was changing at the end of his shift, "[snuck up] behind" him, and pulled his pants down "exposing his private parts for all to see". (Compl., ¶ 16; Wilson Dep., pp. 102-104). Plaintiff speculates that Torres was "coached" to act in this manner by Bencivengo, as evidenced by the fact that Bencivengo smiled "sheepish[ly]" at plaintiff immediately after the incident. (Compl., ¶ 18; Wilson Dep., pp. 104-106). Yet again, however, plaintiff acknowledged at his deposition that he had no evidence that Bencivengo was involved. (Wilson Dep., pp. 105-106). Neither is there any evidence that Torres, who is of Hispanic descent, pulled down plaintiff's pants because he is African-American, which means that the incident has no bearing on plaintiff's race discrimination claim.

2. Alleged Denial of Overtime

This second category comprises plaintiff's claim that he and other African-American workers were regularly denied overtime work at Kew Loop in favor of Caucasian employees. (Pl. Dep., pp. 89-90, 95). In particular, plaintiff contends that rather than post overtime opportunities in a common area of the yard, as was required by DOT regulations and union rules, Bencivengo would "personally announce" overtime availability to Caucasian workers. (Compl., ¶¶ 11-12). The DOT disputes this fact, arguing that plaintiff was never denied overtime work for which he was eligible, which excluded work that (i) involved Community Service Workers ("CSWs"); or, for one brief period of time (ii) required plaintiff to drive a DOT vehicle.

It is unclear from the record how CSWs were involved in overtime or what, for that matter, they are. For purposes of this motion, the Court will assume that they were non-DOT employees assigned to do community service work by order of court or other authority, and that, for this reason, they required supervision while working.

According to plaintiff, his driving privileges were suspended by the DOT from August 15, 2001 to September 30, 2001 because on August 14, 2001 "one of [his] supervisors left a boom on a truck in the up position" and — without noticing the condition — plaintiff drove the truck under an overpass, causing the boom to strike some portion of the structure. (Compl., ¶ 30; Wilson Dep., pp. 86-87).

Plaintiff acknowledges these limitations, see infra, but contends that they were a pretext for discrimination. (Compl., ¶ 13). On April 27, 2000, for example, plaintiff contends that Bencivengo told him with "finality" that he would not receive the overtime work he desired. (Compl, ¶ 9). And on September 21, 24 and 28, 2001, plaintiff contends that he was not allowed to perform overtime work at the World Trade Center site, allegedly because he was prohibited from driving, this despite the fact that other DOT employees who were not allowed to drive worked overtime at the disaster site. (Compl., ¶ 29, 31-32; Wilson Dep., pp. 84-85). Plaintiff also testified more generally that similarly situated DOT employees — that is to say, those who had driving privileges suspended — were regularly allowed to work overtime that involved driving. (Wilson Dep., pp. 93-94, 132). At his deposition, however, plaintiff was able to name only one such individual with certainty, an African-American named "Clifford". ( Id.). In any case, plaintiff later admitted that he felt he wasn't given overtime because Bencivengo didn't like him as an individual, not because he is African-American. ( Id., pp. 95-96).

Moreover, the DOT has submitted overtime records showing that plaintiff earned more in overtime compensation in his first month at Kew Loop than he did in the combined three months prior to his transfer, and that he worked substantial amounts of overtime during different — albeit scattered — periods of time while at Kew Loop. (Rule 56 State., ¶ 57; Overtime Earnings, Ex. G to Rosenthal Decl.). Conversely, there is no evidence of how much overtime Caucasian workers were given, either in the aggregate or individually. Neither is there reliable evidence of how much overtime plaintiff worked in total while at Kew Loop, whether based on his own records or otherwise. Although discovery in this matter is now closed, much of this evidence was certainly available to plaintiff had he requested it.

In addition, the DOT has substantiated its claim that plaintiff was precluded from working certain types of overtime as a result of various disciplinary proceedings and suspensions. For example, prior to starting at Kew Loop, plaintiff was permanently prohibited from working any overtime that required contact with Community Service Workers. (Rule 56 State., ¶ 59; Restriction on Work Assignment Memo., Ex. I to Rosenthal Decl.). He was also subjected to at least two temporary restrictions. First, after his August 14, 2001 motor vehicle accident, see note 5, supra, plaintiff was precluded from working any overtime that might require him to drive a DOT vehicle. (Rule 56 State., ¶ 60; Memo re: Plaintiff's Driving Restriction, Ex. LL to Rosenthal Decl.; Pl. Dep., pp. 84-89; Bencivengo Dep., p. 64). This restriction extended from August 15, 2001 to September 30, 2001, and would have prevented plaintiff from working overtime at the World Trade Center site, which is the focus of his denial of overtime claim. (Bencivengo Dep., p. 64; Rule 56 State., ¶ 62). Second, the DOT has submitted evidence demonstrating that (i) plaintiff was prevented from working any overtime while on medical leave for substance abuse from June to September 2002; and (ii) that plaintiff worked a significant amount of overtime prior to taking medical leave in June 2002. (Rule 56 State., ¶ 67; Ex. G to Rosenthal Decl.). There is simply no evidence that any of these limitations were pretextual.

This prohibition resulted from an incident involving several (allegedly sick) CSWs that plaintiff drove to a train station in a DOT vehicle. (Wilson Dep., pp. 23-28). Plaintiff was also demoted to Assistant Highway Repairman and placed on probation during the years 1998-2000 as a result of this incident.

3. Alleged Failure to Transfer

This third category comprises plaintiff's contentions that he applied for and was denied at least two transfers, and that similarly situated Caucasian workers were transferred upon request. (Compl., ¶ 36; Wilson Dep., pp. 40, 45-47, 70-74). Plaintiff testified that on two occasions he submitted written transfer requests to Alice Cortez and Linda Washington, presumably the DOT employees in charge of transfer requests. He also testified that although both told him a transfer would not be a problem, he was not transferred, allegedly because "a big man" at the DOT "wanted [him] to stay [at Kew Loop] and try to" work through whatever problems he was having at the yard. (Wilson Dep., pp. 41-42). Plaintiff initially declined to name the responsible individual, implying that he feared retaliation, but ultimately capitulated and named an African-American DOT employee named "Leon Hayward". ( Id., p. 43). He also thought a DOT employee by the name of "Margaret Fulgione" was somehow involved in the decision. ( Id.). Plaintiff does not contend — nor could he, based on the record as it now stands — that either of these individuals was motivated by racial animus.

During his deposition Bencivengo clarified the mechanics of the transfer process, testifying that it involved two steps. (Bencivengo Dep., pp. 75-84). First, the employee requesting the transfer would fill out a form and bring it to his or her District Supervisor, who could indicate his consent if he thought the transfer was appropriate. ( Id., p. 79). In plaintiff's case, Bencivengo testified that he consented to two transfer requests, approximately one year apart. (Bencivengo Dep., pp. 77-79). Bencivengo also noted that he generally asked the employee why he or she was requesting the transfer before consenting. ( Id., p. 83). When Bencivengo asked plaintiff, on at least one occasion he answered that he wanted "less physical" or "a little easier" work. ( Id., p. 81).

Once the transfer form is filled out, Bencivengo testified that it would be sent to the DOT's administrative offices, where the Deputy Commissioner would ultimately approve or deny the transfer. ( Id.). In plaintiff's case, Bencivengo testified that he "tr[ied] to help [him] . . . get a transfer", ( id., p. 79), although he has no power to "block someone's transfer" even if he wanted to. When plaintiff's first transfer request was denied, Bencivengo called his Borough Supervisor to ask why; he was told that "they [presumably, the DOT's administration] tried" to grant plaintiff's request, but, for unspecified reasons, could not do it. ( Id., p. 78). Bencivengo himself did not know why the request was denied, and testified that nobody from the DOT's administration contacted him about the transfer — either in plaintiff's case, or in any other case that he could remember. ( Id., p. 79).

More generally, Bencivengo noted that he has "never denied anyone a transfer" in his ten years as a District Supervisor. (Bencivengo Dep., p. 80).

4. Derogatory Language and Acts

This final category comprises plaintiff's allegations involving overtly discriminatory acts or words. These are arguably the most serious claims in this case, beginning with plaintiff's contention that on one occasion Brostowski "ma[de] a remark about niggers", and walked away when plaintiff confronted him. (Compl., ¶ 23; Wilson Dep., pp. 119-120). Plaintiff also testified that Brostowski and Bencivengo called him and other African American workers "Magilla" on "numerous occasions" — perhaps more than a hundred times — while he was at Kew Loop, beginning almost immediately after he arrived at the yard. (Wilson Dep., pp. 47, 75, 114-117; Compl., ¶ 21). According to plaintiff, Magilla is short for "Magilla Gorilla", a cartoon gorilla that first appeared on television in the early 1960's. See http://www.toonopedia.com/magilla.htm (last visited on August 31, 2005); Hanna-Barbera Productions, Inc. v. Screen Gems-EMI Music Inc., 829 F.Supp. 67, 69 n. 1 (S.D.N.Y. 1993) (describing "Magilla Gorilla" as a Hanna-Barbera "Classic Cartoon"). Although plaintiff acknowledged that his supervisors ultimately stopped using the term, he contends that they changed their behavior only after he complained to the DOT's Equal Employment Opportunity ("EEO") office, and only a short time before he left the yard. ( Id., pp. 115-117). At his deposition, Bencivengo denied ever using racial slurs or nicknames at Kew Loop, or ever hearing anyone else do so. (Bencivengo Dep., pp. 45-46).

In the same vein, plaintiff alleges that "white employees" — presumably his co-workers — have called plaintiff "one of Al Sharpton's people", and told plaintiff that he is "no good and . . . not for white people." (Compl., ¶ 33). At his deposition, however, plaintiff acknowledged that this comment was political in nature, and "not about color". (Wilson Dep., p. 136). On this basis, the Court will disregard the comment.

Plaintiff also contends — as is more fully described, infra — that on September 13, 2000 someone left a noose "hanging outside" his locker. Whoever left the noose allegedly followed up with a threatening letter in December 2000. (Rule 56 State., ¶ 81; Letter, Attached as Ex. NN to Rosenthal Decl.; Compl., ¶ 27). The letter contains a picture of a man hanging from a tree by a noose, above which is scrawled a warning: "Wilson we didn't get you yet with the rope at Kew Loop y[ar]d but we will get you.". ( Id.). Plaintiff is unsure who sent the letter, although the fact that it arrived in a DOT envelope makes available the inference that it was a DOT employee. ( Id.). Neither is plaintiff certain who left the noose outside his locker. He believes it was Carlos Torres, whom plaintiff speculates was persuaded to do so by Bencivengo and Brostowski. (EEO Report, attached as Ex. GG to Rosenthal Decl.). Plaintiff also testified that several co-workers witnessed the noose incident, and that he took pictures of it. (Compl., ¶ 24; Wilson Dep., pp. 121-123). This latter allegation is directly at odds with the account plaintiff gave to the DOT's Equal Employment Opportunity Office immediately after the incident, to which the Court now turns.

C. Plaintiff's EEO Complaints

On or about September 20, 2000, in the wake of the noose incident, plaintiff filed a formal complaint with the DOT's EEO office (the "First EEO Complaint"), alleging discrimination on the basis of race, color and religion, and also complaining that he has been retaliated against for refusing to tolerate the discriminatory conduct of which he complained. (Rule 56 State., ¶ 39; First EEO Complaint, attached as Ex. FF to Rosenthal Decl.). In the First EEO Complaint, plaintiff contended that from May 12, 2000 through September 14, 2000, a period of approximately four months, Brostowski and Bencivengo discriminated against him on a number of different occasions and in a number of different ways. ( Id., ¶ 40).

In particular, plaintiff complained (i) that Brostowski "used the N word" because he believed plaintiff was slowing work down by drinking water; (ii) that Brostowski has "been trying to provoke" plaintiff; (iii) that "blacks must work out on location while the white[s] stay in the truck talking; (iv) that he has been having nightmares since finding the noose in his locker; (v) that he has been denied overtime opportunities on the basis of his race or religion; and (vi) that "racial slurs" were used at the yard by his co-workers. (First EEO Compl., pp. 2-3). Plaintiff made no specific complaints against Bencivengo, but asked the EEO office to "stop the racist [behavior]" before "the news media hears about it", and indicated that he believed discrimination to be widespread within the DOT. ( Id.).

Plaintiff also stated that he had complained about the above-described discrimination to Bill Fenty, his union representative, and about his loss of overtime specifically to Margaret Forgione. Although plaintiff indicated that he had "no witness[es]" to the alleged discrimination, purportedly because "they are [all] scare[d]", ( id., p. 3), he listed several witnesses on the final page of the complaint, which is marked "Confidential." ( Id., p. 4). Those witnesses include Lisa Harris, whose title plaintiff indicates as "H.R."; someone named "Payden" and an individual named Pat Corrino, both of whom are listed as "seasonal" Assistant Highway Repairers; Mike Pearsall, a Highway Repairer who allegedly "witness[ed] the rope" near plaintiff's locker (Wilson Dep., p. 67); and Eric Gray, who allegedly experienced discrimination himself at a different yard (collectively, the "EEO Witnesses"). (First EEO Compl., p. 4; Rule 56 State., ¶ 44).

Plaintiff filed a second complaint with the EEO sometime after he received the threatening letter (the "Second EEO Complaint"). Although this second complaint was referred to the DOT's Inspector General's Office ("IGO"), and the IGO set up an appointment with plaintiff, he did not appear at the designated time. (Rule 56 State., ¶ 85; Pl. Dep., p. 130). Plaintiff explained his failure to appear by implying that IGO employees were not to be trusted. (Wilson Dep., p. 130). There is no evidence that plaintiff pursued the Second EEO Complaint further.

D. The DOT's EEO Investigation

In response to the First EEO complaint, the DOT's EEO office initiated an investigation and issued a report summarizing its findings (the "EEO Report"). (Rule 56 State., ¶ 46). The EEO Report, which is dated December 13, 2000, and signed by the Deputy Director of the EEO Madeline Nazario, contains findings of fact, interview summaries, a discussion section, and final recommendations. (EEO Report, attached as Ex. GG to Rosenthal Decl.; Rule 56 State., ¶ 49). Relevant portions of the Report are addressed in more detail below.

1. Findings of Fact

The Report's findings of fact begin by describing the noose incident, which prompted both the First EEO Complaint and plaintiff's phone call to the EEO that same day. According to the Report, when Nazario spoke to plaintiff on September 13 by phone, he stated that he found a "mock noose" in his locker, and that he immediately returned to his truck to get a camera to document the incident. (EEO Report, p. 1). When he returned to his locker with the camera, however, plaintiff indicated that the noose was gone. ( Id.). Nazario then asked plaintiff whether he had reported the incident to his supervisor; plaintiff said he had, and gave Nazario Tony Camera's phone number. ( Id.). When Nazario called Camera a short time later, she asked that he check plaintiff's locker. ( Id.). He did, and reported that he found nothing out of the ordinary. ( Id.).

Camera was a supervisor at Kew Loop. (Bencivengo Dep., p. 19).

The Report next notes that on September 27, 2000 Camera sent a fax to the EEO office with two statements attached, both of which were dated the same day as the noose incident, September 13, 2000. The first statement, signed by Carlos Torres, indicates that towards the end of the day in question Torres was standing outside when plaintiff approached "screaming and yelling" that Torres had "put a rope shaped like a no[o]se on his locker." (EEO Report, p. 2). According to the statement, when Torres denied knowledge of the rope, plaintiff continued to insist on Torres' involvement. Torres also notes in his statement that plaintiff had been "verbally abusive" to him on several similar occasions, allegedly because Torres has problems reading and writing. ( Id.).

The second statement was signed by Camera, and indicates that he was in his office at 3:15 p.m. on September 13 when he received a call from Bill Fenty, plaintiff's Union Representative. ( Id.). According to Camera, Fenty told him that plaintiff called to complain about finding the noose; Camera responded by indicating that he hadn't heard anything, and also noting that nobody was in the trailer (apparently where the locker room is) at the time. ( Id.). Camera also notes in the statement that he received a call several minutes later from the EEO asking him to check plaintiff's locker; as noted, supra, he did so without finding anything. ( Id.). According to Camera, at some point after these calls he approached plaintiff and asked whether there were any witnesses to the incident; plaintiff indicated that there were, and named Jose Perez, Mike Pearsall and Pat Kissane. ( Id.). Camera then notes that when he approached these witnesses to ask if they saw anything, each said no. ( Id.). At that point, according to Camera, he told plaintiff to document the incident, and also indicated that such behavior would not be tolerated in the facility. ( Id.).

2. Plaintiff's EEO Interview

The Report then describes Nazario's October 18, 2000 interview of plaintiff. During the interview, plaintiff told Nazario that he felt Brostowski and Bencivengo were turning other workers against him; he also claimed that the two "planned" the noose incident. ( Id.). Indeed, according to plaintiff, Bencivengo took off the day in question "on purpose" after he and Brostowski had convinced Torres — who will "do anything [they] tell him" — to put the rope in plaintiff's locker. ( Id.). Nazario then told plaintiff that she called Camera the day of the incident, and that he didn't see anything out of the ordinary with plaintiff's locker area. ( Id.). Plaintiff responded by indicating that someone had removed the noose when he went to his truck to retrieve a camera. As noted, supra, this directly contradicts plaintiff's deposition testimony that he was able to take pictures of the noose. (Wilson Dep., pp. 121-123).

Nazario next raised the issue of Brostowski's alleged use of the word "nigger". ( Id.). According to the Report, plaintiff corrected her, explaining that the word Brostowski had used was "niger". When asked whether anyone else had heard Brostowski use the word, plaintiff said no, but also indicated that Brostowski and Bencivengo frequently "make jokes about blacks and are always saying how stupid they are." ( Id., pp. 2-3). Plaintiff also complained that they frequently write him up for being late, and are otherwise "looking for anything" to get him in trouble. ( Id., p. 3). For these reasons, and also because he was experiencing stress at home, plaintiff asked Nazario to transfer him to a different worksite, explaining that he didn't understand why Margaret Forgione refused to let him leave Kew Loop, this in spite of the fact that he had "paid his dues". ( Id.; Wilson Dep., p. 48). According to the Report, plaintiff then explained that Caucasian seasonal workers were given easier (non-labor) work while African-Americans such as plaintiff were forced to "work on the highway". (EEO Report, p. 3). For this reason, plaintiff complained that "his skin color is stopping him from getting ahead". ( Id.). After Nazario told plaintiff that she had no control over or input into the transfer process, the interview concluded.

3. The Brostowski and Bencivengo Interviews

On October 16, 2000, Nazario interviewed John Brostowski, along with plaintiff's Union Representative, Bill Fenty. Brostowski indicated that he had received and reviewed the First EEO Complaint; he considered it to be retaliatory in nature, and stated that it was probably filed because he had cited plaintiff for an unspecified workplace violation that same day. ( Id.). Brostowski also noted that this was not the first time plaintiff had accused him of being racist after being cited, but denied ever using the word "niger" — or any variation thereof — in front of plaintiff or other DOT employees. ( Id.). Neither did Brostowski have any knowledge of the noose incident, except that he had been told it happened at the end of the day in question, and knew of no witness who saw the rope in plaintiff's locker. ( Id., p. 4).

Brostowski then addressed plaintiff's overtime complaint, as well as his complaint about receiving harder work than similarly situated Caucasian workers. Brostowski explained that "everyone has an opportunity to work" overtime by "checking" their name on lists of available work posted at the yard; he also noted his belief that plaintiff felt entitled to easy work because he had been on the job longer than most, a belief he disagreed with because "everyone [wa]s expected to work" similarly at Kew Loop. ( Id.). Fenty added that plaintiff had complained to him in the past about a lack of overtime, but also explained that plaintiff had been banned from doing certain kinds of overtime work — including work involving Community Service Workers ("CSW Overtime") — after entering into a stipulation to that effect with the DOT's Advocate's Office. ( Id.).

Nazario interviewed Bencivengo on October 27, 2000. Like Brostowski, Bencivengo stated that he had never heard racially derogatory terms used at Kew Loop by any supervisor or worker. ( Id.). Although Bencivengo had no first-hand knowledge of the noose incident — it is undisputed that he was not at work on the date in question — he stated that plaintiff told him that three co-workers had witnessed the noose at his locker. Like Camera, Bencivengo noted that when he questioned the witnesses, none had first-hand knowledge of the incident. ( Id.). When asked about overtime work, Bencivengo corroborated Brostowski and Fenty's account, noting that it was equally available to all workers, with the exception of work plaintiff was not allowed to take on, such as CSW overtime. ( Id.).

4. Other Witnesses

Nazario also interviewed several of plaintiff's co-workers at Kew Loop. Alicia Harris — like plaintiff, a Highway Repairer — believed there to be "racial problems" at the yard, but also noted that she had no first-hand knowledge of the noose incident, and had never heard the word "niger" used at Kew Loop, either by co-workers or supervisors. ( Id., p. 5). She also explained that she considered Brostowski a "nice man", and did not believe him to be racist. According to Harris, the "racial problems" at Kew Loop were two-fold: first, Harris believed, like plaintiff, that Caucasian workers were given easier work assignments than African-American workers; and second, Harris explained that Bencivengo would "pick and choose" who got overtime work, a system which resulted in Caucasian workers getting better work with more frequency. ( Id.). For this reason, Harris stated that she never applied for overtime work.

According to Harris, "token blacks" were occasionally given easier work "to make it look good." (EEO Report, p. 5).

Nazario also interviewed Patrick Kissane, a seasonal Assistant Highway Repairer, and Michael Dedely, a Highway Repairer, because plaintiff listed both as witnesses to the noose incident. ( Id., p. 5). Kissane stated that he didn't know why plaintiff listed him as a witness, explaining that he knew nothing about the incident, and hardly knew plaintiff. Kissane also denied ever hearing anyone at Kew Loop using racial slurs, and thought that overtime work was distributed fairly, offering that the perception that some got "easier" work than others may be due to the fact that some workers are not qualified to do certain non-labor work, which is perceived as "easy". ( Id., p. 5).

Michael Dedely, also a Highway Repairer, was identified as a witness but had no first-hand knowledge of the noose incident. Dedely did say, however, that he considered Bencivengo to be a "vindictive" supervisor who "wants the job done no questions asked". ( Id., p. 6). Dedely also believed that African-American workers were treated differently from Caucasian workers at Kew Loop — for example, he thought that African-Americans were sometimes given more physical job assignments — but explained that Bencivengo was hard on everyone, whatever their race, who did not live up to his expectations. ( Id.).

On November 21, 2000, Nazario interviewed Tony Camera, a supervisor at Kew Loop. During his interview, Camera reiterated his earlier statement — faxed to the EEO on September 27, 2000 — that he did not see a noose in plaintiff's locker on the day of the incident. He also stated that when he questioned the Kew Loop workers who plaintiff claimed had seen the incident, none indicated that they had. ( Id.). Although Camera thought there was a great deal of "horseplay" at the yard, and that sometimes the workers' behavior "got out of hand", he did not recall ever hearing racial slurs used at Kew Loop, except among African-Americans themselves, a practice he condemned. ( Id.).

Nazario also conducted a follow-up interview of Carlos Torres, who, like Camera, submitted a statement on September 27, 2000, and who plaintiff claims was responsible for the noose. Torres explained that he had known plaintiff for a long time, and had previously considered the two to be friends, but noted that the relationship had soured because although plaintiff enjoyed teasing Torres he was unable to "take it" when Torres teased him in return. ( Id., p. 6). Torres also denied having placed a noose in plaintiff's locker, had never heard racial slurs used at Kew Loop, and thought all workers were treated equally. ( Id.).

Finally, Nazario interviewed Michael Pearsall, a Caucasian co-worker plaintiff listed as a witness in the First EEO Complaint. (Wilson Dep., p. 132). Although Pearsall had heard about the noose incident from other workers, he had no first hand knowledge of it. ( Id.). Pearsall also indicated that he believed everyone was treated fairly at Kew Loop, that he had never heard anyone using racial slurs, that he considered overtime to be evenly distributed among workers, and that he considered Bencivengo to be a good supervisor. ( Id.). By contrast, he considered plaintiff to be paranoid and to believe himself entitled because of his 20-year service with the DOT. ( Id.).

5. The Report's Discussion, Conclusions, and Recommendations

The final sections of the Report summarize the witness interviews, stressing that none corroborated plaintiff's noose allegation and that most considered overtime to be distributed evenly among workers. The Report also indicates that plaintiff called the EEO office on several occasions during the investigation, and on one occasion indicated that he had an additional witness, who — as an "honest God faring man" — would tell the truth. ( Id., p. 8). Plaintiff later called back, however, to say that the witness had "turned on him" and was now "in the pockets of" the Kew Loop supervisors. The Report also notes that plaintiff called the EEO office on December 8, 2000 to say that he had received a threatening letter, and that he visited the EEO office on December 11, 2000 to ask about his transfer. ( Id.). The Report states that Nazario advised plaintiff to file a Report with the Inspector General's office regarding the letter; she also advised plaintiff that she had no control over or input into the transfer process. ( Id.).

Nazario concludes the Report by noting that because Harris and Dedely corroborated certain aspects of plaintiff's complaint, workers at Kew Loop should undergo EEO training. Although plaintiff testified that this training never occurred, (Wilson Dep., p. 127), the DOT has submitted attendance sheets indicating that training was conducted on at least two occasions, January 12, 2001 and January 18, 2001. (Rule 56 State., ¶ 54; EEO Attendance Sheets, Attached as Ex. HH to Rosenthal Decl.). Plaintiff was informed of the Report's conclusions by letter dated December 19, 2000. (Compl., ¶ 27).

E. Plaintiff's State Human Rights and EEOC Complaints

Approximately two months after plaintiff filed the First EEO Complaint, on November 13, 2000, he filed charges against the DOT with the New York State Division of Human Rights. (the "SHR Complaint") (Rule 56 State., ¶ 45). The SHR Complaint was forwarded to the EEOC, but ultimately dismissed on July 2, 2001 after plaintiff filed the present action, which is based on many of the same allegations. ( Id.). The EEOC claim was also concluded without any action and plaintiff was provided with a 90-day right to sue letter. This action followed.

III. Discussion

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment may also be granted when the opposing party fails to establish an element essential to that party's case and on which that party would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2nd Cir. 1998) (summary judgment is "mandated" when "the evidence is insufficient to support the non-moving party's case.")

In reviewing the record, the district court must assess the evidence in "the light most favorable to the non-moving party," resolve all ambiguities, and "draw all reasonable inferences" in its favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2nd Cir. 1994); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). But an alleged factual dispute between the parties will not by itself defeat a motion for summary judgment because "the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S., at 247-48 (emphasis in original). "A fact issue is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Mitchell v. Shane, 350 F.3d 39, 47 (2nd Cir. 2003) (quoting Anderson, 477 U.S., at 248). "A fact is `material' if it might affect the outcome of the suit under governing law." Id. (quoting Anderson, 477 U.S., at 248).

Moreover, to survive summary judgment, the non-moving party cannot rely on mere allegations, denials, conjectures or conclusory statements, but must present affirmative and specific evidence showing that there is a genuine issue for trial. Anderson, 477 U.S., at 256-57; Gross v. Nat'l Broad. Co., Inc., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002). Where, as here, a plaintiff's case depends in part on his own statements and observations, such statements must "be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2nd Cir. 2004) (quoting Fed.R.Civ.P. 56(e)).

Thus, hearsay statements that would be inadmissible at trial, conclusory assertions, and mere denials contained in those affidavits are insufficient to create a genuine issue of material fact. Id. (internal citations omitted); Quinn v. Syracuse Neighborhood Corp., 613 F.2d 438, 445 (2nd Cir. 1980); Nora Beverages, Inc. v. Perrier Group of Am., Inc., 269 F.3d 114, 123-24 (2nd Cir. 2001). Neither will "unsubstantiated speculation" suffice. Scotto v. Almenas, 143 F.3d 105, 114 (2nd Cir. 1998) (citation omitted). Rather, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

Keeping those principles in mind, as well as the fact that plaintiff's SHRL and § 1981 claims will be considered pursuant to the relevant Title VII standards, the Court turns to the merits of the DOT's motion. Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1177 (2nd Cir. 1996) (Title VII and SHRL claims analyzed under same standard); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2nd Cir. 1997) (Title VII and 1981 claims analyzed under same standard).

A. Disparate Treatment and Retaliation Standards

Title VII prohibits an employer from discharging any individual "with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). Likewise, Title VII prohibits employers from retaliating against employees who take action to protect their rights under the statute. McMenemy v. City of Rochester, 241 F.3d 279, 283 (2nd Cir. 2001) (Title VII prohibits retaliation). The broader purpose of the statute is "to eliminate discrimination in employment, that is, employees who are similarly situated are not to be treated differently simply because they differ from one another" for reasons have to do with their race, religion, or national origin. Cosme v. Henderson, 287 F.3d 152, 157 (2nd Cir. 2002).

Both disparate treatment and retaliation claims brought under Title VII are analyzed using the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Hollander v. American Cyanamid Co., 895 F.2d 80, 83 (2nd Cir. 1990) (applying McDonnell Douglas framework to disparate treatment claim); Jetter v. Knothe Corp., 324 F.3d 73, 75 (2nd Cir. 2003) (analyzing retaliation claim under McDonnell Douglas framework). For disparate treatment claims, a plaintiff must first establish a prima facie case "by showing that 1) that he belonged to a protected class; 2) that he was qualified for the position he held; 3) that he suffered an adverse employment action; and 4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Feingold v. New York, 366 F.3d 138, 152 (2nd Cir. 2004) (internal citations omitted).

Similarly, to establish a prima facie case of retaliation, a plaintiff must show that "(1) the employee was engaged in a protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action." Reed v. A.W. Lawrence Co. Inc., 95 F.3d 1170, 1178 (2nd Cir. 1996). A causal connection may be "established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant." Johnson v. Palma, 931 F.2d 203, 207 (2nd Cir. 1991) (internal citations and quotations omitted) (emphasis in original).

Once a plaintiff has made a prima facie case of either disparate treatment or retaliation, a presumption of discriminatory animus arises, and the burden shifts to the defendant to proffer a legitimate, nondiscriminatory business reason for the adverse employment action. McDonnell Douglas, 411 U.S., at 802. If the employer can do so, Fisher v. Vassar College, 114 F.3d 1332, 1336 (2nd Cir. 1997), the presumption of animus completely "drops out of the picture", St. Mary's [Honor Ctr. v. Hicks], 509 U.S. 502, 510-11 (1993), and at that point, "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id.

B. Plaintiff's Disparate Treatment and Retaliation Claims Fail

Plaintiff claims that he was subjected to disparate treatment and retaliation at Kew Loop in three principal forms: (1) two refusals to transfer; (2) denial of overtime work; and (3) otherwise poor treatment, for example through substandard work assignments or unfair criticisms. These claims fail under the McDonnell Douglas framework for at least two reasons: first, because plaintiff has not established that any of the DOT's acts constituted an "adverse employment action", as required under the third prong of the prima facie case. 411 U.S., at 802; and second, even assuming that plaintiff has met the prima facie standard, because there is no evidence that "reasonably supports a finding of prohibited discrimination." 509 U.S. 502, 510-11. The Court will address these failings in turn.

1. Plaintiff Has Not Demonstrated an Adverse Employment Action

An adverse employment action is a "`materially adverse change in the terms and conditions of employment.'" Richardson v. New York State Dept. of Corr. Serv., 180 F.3d 426, 446 (2nd Cir. 1999) (citations omitted). A broad range of employment actions have been deemed sufficiently disadvantageous to qualify as "adverse" under the third prong of the McDonnell Douglas test. Courts have found, for example, the required degree of adversity where employees (i) were terminated; (ii) lost wages or benefits; (iii) had job titles reduced; (iv) had job responsibilities diminished; or, more generally (v) suffered any "other indices . . . unique to a particular situation" sufficient to qualify as material changes in the terms or conditions of employment. Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2nd Cir. 2000) (ellipsis in original) (citations omitted). Significantly, as this list suggests, "[t]o be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (citation and internal quotation marks omitted).

a. Failure to Transfer

Plaintiff first claims that he suffered an adverse employment action by being denied two requests for a transfer out of Kew Loop. The question, then, is whether by denying these requests, the DOT imposed a "materially significant disadvantage" on plaintiff. Galabya, 202 F.3d 636, at 641. The DOT, of course, argues that it did not. The Court agrees.

There is simply no evidence from which a reasonable juror could conclude that a transfer from Kew Loop would have "materially" altered plaintiff's employment. To begin, it is unclear from the record why plaintiff wanted a transfer, or even where he might have been transferred had his applications been granted. Although Bencivengo testified that plaintiff wanted a transfer so that he could get "easier" or "less physical" work, there is not evidence (i) that such work was available at the time plaintiff requested a transfer; (ii) that plaintiff would have been qualified for the transfer even were it available; or (iii) that the transfer process allowed DOT employees to request specific worksites or assignments. In any case, plaintiff does not allege that he lost wages, retirement credits, or other benefits as a result of the denial. Rather, at best, the record indicates that plaintiff sought an "alteration of job responsibilities" by applying for a transfer, not material changes to the terms of his employment, such as a raise or promotion. In other words, plaintiff was applying for a lateral transfer.

As a general matter, lateral transfers are typically insufficient to give rise to an adverse employment action. See, e.g., Booker v. Fed. Reserve Bank of New York, 2003 WL 1213148, at *11 (S.D.N.Y. March 17, 2003) ("Typically, lateral transfers or shift changes without a loss of pay or other material changes in working conditions do not constitute an adverse employment action"). Indeed, the Second Circuit has recently cautioned that "[i]f a transfer is truly lateral and involves no significant changes in an employee's conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action." Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2nd Cir. 2004) (citing Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532-33 n. 6 (10th Cir. 1998)).

To be sure, it is clear that plaintiff wanted out of Kew Loop; it is likewise clear that he was disappointed when his transfer requests were rejected. Such subjective, personal disappointments, however, "do not meet the objective indicia of an adverse employment action." Williams, at 128 (citing Galabya, 202 F.3d at 640). In sum, "[w]ithout a real change in the conditions of [plaintiff's] employment," the denial of plaintiff's transfer was "a mere inconvenience or an alteration of job responsibilities," and hence not "materially adverse." Galabya, 202 F.3d at 640.

b. Denial of Overtime

Plaintiff next contends that he suffered an adverse employment action by being denied overtime while at Kew Loop. On the record as it stands, however, plaintiff has simply failed to show that he was actually denied overtime while at Kew Loop, at least relative to similarly situated Caucasian workers. As noted, supra, in Section II.B.2, there is no evidence of how much overtime work plaintiff was afforded while at Kew Loop. Neither is there evidence of how much overtime similarly situated Caucasians were given. Although plaintiff alleges generally that Bencivengo distributed overtime to his "favorites", and at least one of plaintiff's co-workers (Ms. Harris, who never sought overtime) shared plaintiff's opinion, without "affirmative and specific" supporting evidence that plaintiff was actually denied overtime, or evidence of some specific incident in which overtime work was given to a Caucasian employee instead of plaintiff, this claim cannot survive summary judgment.

Numerous courts have reached the same conclusion. Taylor v. Potter, 2004 WL 1811423, at *23 (S.D.N.Y. Aug. 16, 2004) (rejecting denial of overtime claim where there was "no evidence that [plaintiff] was offered fewer opportunities to work overtime . . . or was offered fewer opportunities than other similarly situated employees."); Richerson v. Niagara Mohawk Power Corp., 2001 WL 877478, at *4 (W.D.N.Y. July 30, 2001) (same, because "nowhere in plaintiff's papers is it indicated which similarly situated but less senior employees in her department received more favorable treatment."); Harris v. New York City Dep't of Homeless Servs. Eligibility Investigation Unit, 1998 WL 205334, at *7 (S.D.N.Y. Apr. 28, 1998) (same, where "there is absolutely no evidence" that plaintiff was denied overtime at all, "much less . . . [as] a result of unlawful discrimination."), aff'd, 1999 WL 314158 (2nd Cir. May 14, 1999); Ramsey v. New York City Health Hospitals Corp., 2000 WL 713045, at *8 (S.D.N.Y. June 2, 2000) (same, where after full discovery plaintiff "present[ed] no specific evidence of disparate treatment in the assignment of overtime work.").

c. Poor Treatment

Finally, plaintiff contends that he was subjected to an adverse employment action when he was unfairly criticized and humiliated at Kew Loop. But none of these allegations resulted in "materially adverse" changes in the terms or conditions of plaintiff's employment. During plaintiff's deposition, as noted in Section II.B.1, supra, plaintiff repeatedly acknowledged that he had no evidence, aside from pure speculation, that the supervisors at Kew Loop unfairly singled him out for harsh or unfair treatment, or otherwise intentionally humiliated him, whether by playing with his time card or otherwise. Such "unsubstantiated speculation" is insufficient to withstand a motion for summary judgment. Scotto, 143 F.3d 105, at 114.

In any case, it is well established that allegations of unfair criticism alone — that is to say, unaccompanied by an allegation that the criticism negatively impacted the terms or conditions of a plaintiff's employment — cannot constitute an adverse employment action. Weeks v. New York State Division of Parole, 273 F.3d 76, 86 (2nd Cir. 2001) ("a 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."); Jenkins v. Board of Education, 64 Fed.Appx. 801, 804 (2nd Cir. 2003) (rejecting a claim of an adverse employment action based on an "unsatisfactory" evaluation that was either threatened or actually received, because "there [was] no evidence that [the plaintiff] suffered a diminution in salary or benefits."); Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 756 (2nd Cir. 2004) (holding that jury could reasonably find that a negative evaluation was not an adverse employment action where plaintiff had offered no proof that the "evaluation had any effect on the terms and conditions of her employment"). In this case, plaintiff has not alleged that the "unfair" criticism he received at Kew Loop negatively effected the terms or conditions of his employment, for example by causing him to lose wages or benefits. This allegation cannot, therefore, qualify as an "adverse employment action" under McDonnell Douglas.

2. Plaintiff Has Not Shown Discriminatory Intent

With respect to the prima facie case, the burden plaintiff carries is "minimal," Hicks, 509 U.S. at 506 (1993); accordingly, and for the sake of thoroughness, the Court will assume in this section that plaintiff has established a prima facie case of disparate treatment and retaliation, and move further into the McDonnell Douglas framework. Because the DOT has offered legitimate, non-discriminatory reasons for the alleged adverse employment actions — namely, that plaintiff was denied overtime, if at all, because he was not qualified to work the particular type of work available; that he was not transferred for business reasons; and that he was frequently cited by supervisors because he was a poor worker — the DOT will be "entitled to summary judgment . . . unless . . . plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." 509 U.S. 502, 510-11.

Plaintiff's failure to transfer claim does not meet this standard because it fails to take account of the mechanics of the transfer process. It is undisputed that Bencivengo supported both of plaintiff's transfer applications, and that once he signed off the application was sent to DOT administrators. Plaintiff has not averred that any DOT employee in any other department discriminated against him on the basis of his race; neither is there any independent evidence of such discrimination in the record. It would therefore be impossible for plaintiff to prove at trial that he was denied a transfer on the basis of his race because there is no conceivable nexus between the alleged discrimination and the decisionmaker. Plaintiff's retaliation claim fails for the same reason.

Finally, even if there was evidence that plaintiff was denied overtime while at Kew Loop, there is no support for the proposition that it was the result of unlawful discrimination or retaliation. Plaintiff's overtime complaint focuses on the aftermath of the World Trade Center disaster, and his inability to participate in CSW overtime. But it is undisputed (i) that, as a result of a vehicular accident and subsequent DOT investigation, plaintiff's driving privileges were suspended while DOT employees were called upon to remove debris from the World Trade Center site; and (ii) that plaintiff was permanently prohibited from working with community service workers, including during overtime, while at Kew Loop. Absent some evidence that these limitations were pretextual, or that similarly situated Caucasian workers were afforded more overtime, the "abundant and uncontroverted independent evidence" demonstrates that plaintiff was not denied overtime while at Kew Loop on the basis of his race. Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2nd Cir. 2001) (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)); Austin v. Ford Models, 149 F.3d 148, 152 (2nd Cir. 1998) (plaintiff must show that similarly situated employees outside his protected group received more overtime to support a claim for alleged lost overtime).

This leaves plaintiff's hostile work environment claim, to which the Court now turns.

C. Hostile Work Environment

To survive a motion for summary judgment, a hostile work environment claimant must demonstrate a genuine issue of material fact "(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his or] her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2nd Cir. 2004) (internal citations and quotation marks omitted). The Court will consider these elements out of order, beginning with the requirement that plaintiff demonstrate a "specific basis" to impute the allegedly wrongful conduct to the DOT.

1. Imputable Conduct

The question whether a plaintiff can impute conduct to his employer depends on whether the conduct was carried out by his supervisors or by non-supervisory co-workers. Fairbrother v. Morrison, 412 F.3d 39, 52 (2nd Cir. 2005). To impute the conduct of his co-workers, a plaintiff must show that his employer "`failed to provide a reasonable avenue for complaint or . . . knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.'" Howley v. Town of Stratford, 217 F.3d 141, 154 (2nd Cir. 2000) (quoting Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 441 (2nd Cir. 1999)). By contrast, an employer is presumptively liable for a hostile work environment "created by a supervisor with immediate (or successively higher) authority over the employee." Faragher v. City of Boca Raton, 524 U.S. 775, 805-06 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65 (1998) (companion case). Where, as here, a plaintiff alleges that a hostile environment was created both by his co-workers and his supervisors, district courts must analyze whether employer liability can be established under either test. Haugerud v. Amery Sch. Dist., 259 F.3d 678, 696-700 (7th Cir. 2001); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 875-77 (9th Cir. 2001).

Having reviewed the record, the Court concludes that no reasonable juror could find that the DOT did not provide a reasonable avenue for plaintiff's complaints, or that the DOT failed to take appropriate remedial action once alerted to the alleged conduct at Kew Loop. It is undisputed that the DOT maintains a Code of Conduct that sets forth its Equal Employment Opportunity policy and procedures (the "EEO Policy"). (DOT Code of Conduct, Exhibit EE to Dec. 15, 2004 Decl. of Chad Rosenthal ("Rosenthal Decl")). Pursuant to the EEO Policy, the DOT operates a comprehensive internal complaint procedure for any employee who believes he has been the subject of discrimination, whether on the basis of age, race, religion or sex. (Rule 56 State., ¶ 38). In this case, plaintiff took advantage of this procedure on at least two occasions; initially after finding the noose in his locker, and a second time upon receipt of the threatening letter in December 2000.

It is likewise clear that the DOT responded appropriately to both complaints; in response to the First EEO Complaint, the DOT interviewed purported witnesses, including plaintiff, Bencivengo and Brostowski. (EEO Report). Although the DOT concluded that there was no evidence to substantiate plaintiff's complaint, Kew Loop employees were required to attend EEO training on January 12, 2001 and January 18, 2001. In response to the Second EEO Complaint, which plaintiff made in response to the threatening letter, the DOT's Inspector General's Office set up an appointment with plaintiff. That he chose not to attend — ostensibly because he believed the IGO to be untrustworthy — does not reflect on the adequacy of the DOT's response.

This means that the only way plaintiff's hostile work environment claim survives is if a reasonable jury could impute sufficient conduct to plaintiff's supervisors to meet the "pervasive" standard. The DOT may also have available an affirmative defense. The Court now turns to those questions.

2. Was Supervisor Conduct "Severe and Pervasive"?

The "severe and pervasive" element of a hostile work environment claim has both an objective and subjective component. "[T]he misconduct must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive." Terry v. Ashcroft, 336 F.3d 128, 148 (2nd Cir. 2003) (internal quotation marks omitted). There is no dispute in this case that plaintiff subjectively perceived his work environment to be abusive. The only issue, then, is whether a reasonable person in plaintiff's shoes would consider the misconduct allegedly perpetrated by the supervisor at Kew Loop to create a hostile or abusive environment. In considering this question at the summary judgment stage a court must consider the totality of the circumstances, paying close attention to 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 v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

Although the objectivity threshold should not be set too low, neither should it be elevated beyond reach. As the Second Circuit has cautioned: "[w]hile a mild, isolated incident does not make a work environment hostile, the test is whether `the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.'" (alteration and emphasis in the original). Terry v. Ashcroft, 336 F.3d 128, at 148 (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2nd Cir. 2000)). An environment that is "altered for the worse" does not need to be "`unendurable' or `intolerable.'" Id. To the contrary, several courts have held that even a single incident of sufficient severity may so alter the terms and conditions of employment as to create such an environment. See generally Faragher, 524 U.S. 775, 788; Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2nd Cir. 2001), cert. denied, 537 U.S. 824 (2002).

As noted, supra, plaintiff contends that he was subjected to overtly derogatory conduct at Kew Loop in several forms, but most seriously (i) through the use of racially offensive language, including use of the term "niger" and the nickname "magilla"; and (ii) by receiving at least two racially charged threats, the first in the form of a noose outside his locker, and the second in the form of an overtly threatening letter containing a picture of a noose. Although there is no admissible evidence to connect the noose incidents to plaintiff's supervisors, plaintiff testified that he remembered his supervisors using term "magilla" on "more than a hundred" occasions, and the word "nigger" or "niger" on at least one occasion. On this basis alone, and assuming, as the Court must for purposes of this motion, the veracity of plaintiff's allegations, the Court is compelled to conclude that plaintiff has introduced sufficient to withstand the DOT's motion for summary judgment on his hostile work environment claim. Schwapp v. Town of Avon, 118 F.3d 106, 111-112 (2nd Cir. 1997) (if frequent and severe enough, racial slurs alone can create hostile work environment) (citations and quotation marks omitted).

Indeed, several courts have held the "severe and pervasive" standard to be met under circumstances equivalent to those here. Torres v. Pisano, 116 F.3d 625, 632-33 (2nd Cir. 1997) ("a reasonable Puerto Rican would find a workplace in which her boss repeatedly called her a "dumb spic" and told her that she should stay home, go on welfare, and collect food stamps like the rest of the "spics" to be hostile."); Schwapp, 118 F.3d, at 112 (a reasonable jury could find severe or pervasive harassment where African-American plaintiff was aware of ten to twelve racially-hostile incidents, primarily jokes and epithets, in workplace over 20 month period); Richardson, 180 F.3d, at 437-39 (reversing district court's grant of summary judgment in hostile work environment action where plaintiff alleged she was subjected to ten racially hostile incidents during a three and one-half year employment, including co-workers' use of the word "nigger"); Sales v. YM YMHA of Washington Heights and Inwood 2003 WL 164276, at *7 (S.D.N.Y. 2003) (use of term "Bolunga" and statement that plaintiff played basketball "like an animal", when "viewed in th[e] context of repeated racial slurs and extremely degrading racist jokes" was enough to establish objective hostility).

Further, the DOT's argument that the alleged conditions at Kew Loop cannot give rise to a hostile work environment is not compelling. The DOT contends that the term "Magilla" is racially ambiguous. It is nothing of the sort, and even if it were, resolving the ambiguity would be a task for a jury, not this Court on summary judgment. Neither is it true that plaintiff was vague about the prevalence of the nickname; he testified that its use was widespread, recalling that he heard it used by supervisors at Kew Loop on more than a hundred occasions. Richardson, 180 F.3d at 439 ("[p]erhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of the unambiguously racial epithet such as `nigger'"); Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2nd Cir. 2004) ("If the right to be free from a racially hostile work environment means anything at all, surely it includes the right to be free from a workplace permeated by racial slurs.") (quoting Ocheltree v. Scollon Prods., Inc., 308 F.3d 351, 376 (4th Cir. 2002)).

That leaves just the question of the DOT's potential affirmative defense.

3. The DOT's Affirmative Defense

In addition to directly questioning plaintiff's credibility at trial, the DOT will have available an affirmative defense to the hostile work environment claim. Burlington, 524 U.S., at 765 ("when no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages."). This "defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S., at 807; Burlington Indus., 524 U.S., at 765. Significantly, the DOT will bear the burden of proof on this defense at trial. See Fitzgerald v. Henderson, 251 F.3d 345, 357 (2nd Cir. 2001). To grant summary judgment on this basis, therefore, would be equivalent to granting a motion in favor of the DOT for judgment as a matter of law. Fairbrother, 412 F.3d, at 53. It is well established that a party "faces a significantly heightened standard to obtain judgment as a matter of law on an issue as to which that party bears the burden of proof." Id. Indeed, "[a] verdict should be directed in such instances only if the evidence in favor of the movant is so overwhelming that the jury could rationally reach no other result." Id. (citing Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 109 (2nd Cir. 2001); 9 Moore's Federal Practice § 50.05 (2004) ("[G]ranting judgment as a matter of law for a party who bears the burden of proof is an extreme step that may be taken only when the evidence favoring the movant is so one-sided that, absent adequate evidentiary response by the nonmovant, it could not be disbelieved by a reasonable jury.")).

Although the Burlington Court announced this affirmative defense in the context of a sexual harassment claim, the Second Circuit has applied — and thus at least implicitly signaled its approval of — use of the defense in the race discrimination context. See, e.g., Richardson v. New York State Dept. of Correctional Service, 180 F.3d 426, 442 (2nd Cir. 1999). This Court will do likewise, seeing no reason to distinguish between race and sex discrimination, at least with respect to an employer's liability for supervisor conduct.

Applying this standard, the Court finds that the DOT cannot establish its entitlement to judgment as a matter of law on the second component of its affirmative defense, which requires demonstrating "that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S., at 807; Burlington Indus., 524 U.S., at 765. Plaintiff in this case filed at least two formal complaints with the DOT's EEO Office; he also testified that he verbally complained to his union representative and the DOT's EEO office "when . . . [he first] got to" Kew Loop and "s[aw] [what was] going on . . . there", as well as after his first transfer request was denied, approximately "four to five months" after he got to the yard. (Wilson Dep., pp. 46-47, 146). According to plaintiff, he complained about "how [African Americans at the yard] were being treated" because he "couldn't fathom seeing all that racism going on" at Kew Loop, for example the use of the term "Magillas." (Id., pp. 47-48).

The DOT has not rebutted this showing, and therefore has not satisfied "its initial burden of demonstrating that an employee has completely failed to avail herself of the complaint procedure." Leopold v. Baccarat, 239 F.3d 243, 246 (2nd Cir. 2001). Accordingly, because the Court finds that a reasonable juror could conclude that plaintiff reasonably availed himself of the remedial opportunities available, and that the hostile work environment continued unabated thereafter, summary judgment is not available on the DOT's affirmative defense.

D. Plaintiff's § 1981 Claim Fails as a Matter of Law

When a defendant sued for discrimination under § 1981 is a municipality or an individual sued in his official capacity, a plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy or custom. Rumala v. New York City Transit Authority, 2005 WL 2076596, at *10 (E.D.N.Y. Aug. 26, 2005). To show a policy, custom, or practice, the plaintiff need not identify an express rule or regulation. See, e.g., Sorlucco v. New York City Police Department, 971 F.2d 864, 870 (2nd Cir. 1992). Rather, it is sufficient to show, for example, that a discriminatory practice of municipal officials was so "persistent or widespread" as to constitute "a custom or usage with the force of law," id. at 870-71 (internal quotation marks omitted), or that a discriminatory practice of subordinate employees was "so manifest as to imply the constructive acquiescence of senior policy-making officials." Id., at 871. A policy, custom, or practice may also be inferred where "the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction." Kern v. City of Rochester, 93 F.3d 38, 44 (2nd Cir. 1996), cert. denied, 520 U.S. 1155 (1997) (internal quotation marks omitted).

Plaintiff has not demonstrated a genuine issue of fact with respect to any policy or custom at the DOT sufficient to trigger § 1981 liability. The alleged discrimination, while serious, was simply not so "persistent or widespread" that it can be said to have constituted "a custom or usage with the force of law". Neither has plaintiff shown that liability could be premised on a failure to train. Accordingly, the Court finds that the DOT is entitled to summary judgment on plaintiff's § 1981 claim.

IV. Conclusion

For the foregoing reasons, defendant's motion for summary judgment is granted in part and denied in part.

SO ORDERED.


Summaries of

Wilson v. New York City Department of Transportation

United States District Court, S.D. New York
Sep 27, 2005
01 Civ. 7398 (RJH) (S.D.N.Y. Sep. 27, 2005)

denying request to change shift did not amount to an adverse employment action

Summary of this case from Merisier v. Kings Cnty. Hosp.

denying summary judgment on a hostile work environment claim where a noose was put outside plaintiff's locker

Summary of this case from Macmillan v. Millennium Broadway Hotel

denying summary judgment on a hostile work environment claim based on the repeated use of offensive nicknames coupled with the display of a noose

Summary of this case from Smith v. Town of Hempstead Dep't of Sanitation Sanitary Dist. No. 2

In Wilson, the noose in question hung outside the plaintiff's locker, and in Smith, the noose hung in a central garage where all African American employees would pass. An appeal of the Henry decision is currently pending.

Summary of this case from Washington v. San Francisco

treating defendant's motion for summary judgment as unopposed where plaintiff "has failed to meet numerous deadlines . . . and has failed to file a timely opposition to the [defendant's] summary judgment motion

Summary of this case from Wilson v. Pessah

noting disparate treatment and retaliation claims brought under Title VII are analyzed under McDonnell Douglas burden shifting framework

Summary of this case from Augustin v. Yale Club of New York City
Case details for

Wilson v. New York City Department of Transportation

Case Details

Full title:WILBERT WILSON, Plaintiff, v. NEW YORK CITY DEPARTMENT OF TRANSPORTATION…

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

Date published: Sep 27, 2005

Citations

01 Civ. 7398 (RJH) (S.D.N.Y. Sep. 27, 2005)

Citing Cases

Macmillan v. Millennium Broadway Hotel

See, e.g., Tademy v. Union Pac. Corp., 614 F.3d 1132, 1142 (10th Cir. 2008); Hollins v. Delta Airlines, 238…

Wilson v. Pessah

Even in light of the considerable latitude that should be afforded to pro se litigants in complying with…