Opinion
97-CV-0477E(Sc).
August 7, 2002
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff filed a charge against the New York State Department of Correctional Services ("DOCS") with the Equal Employment Opportunity Commission ("EEOC") August 12, 1996 alleging that DOCS had discriminated against him on the basis of his sex and had retaliated against him for having filed a previous charge with the EEOC on such basis May 25, 1995. The EEOC issued plaintiff a right-to-sue letter March 11, 1997 and plaintiff commenced this action June 6, 1997. Plaintiff filed an Amended Complaint April 30, 1998 naming seven defendants — viz., (1) DOCS, (2) the State of New York ("the State"), (3) United Church of Christ and Associates ("UCCA"), (4) United Church Colony Homes, Inc. ("UCCH"), (5) United Church Home Society, Inc. ("UCHS"), (6) John Doe and (7) Jane Doe — and raised four causes of action — viz., (1) discrimination in the terms and conditions of employment on the basis of his sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), (2) retaliation for his having complained about being discriminated against on the basis of his sex in violation of Title VII, (3) conspiracy to deprive him of equal protection of the law and of equal privileges and immunities because of his sex in violation of 42 U.S.C. § 1985(3) and (4) discrimination on the basis of his sex in violation of New York's Human Rights Law, N.Y. Exec. Law § 290 et seq. ("HRL"). In a Memorandum and Order dated June 8, 1999 this Court dismissed plaintiff's HRL claim against DOCS and the State. Cole v. New York State Dept. of Corr. Servs., No. 97-CV-0477E(M), 1999 WL 409494, (W.D.N.Y. June 8, 1999). In a Memorandum and Order dated November 12, 1999 this Court granted plaintiff default judgment against defendant UCCA and dismissed all claims against defendant UCCH. Cole v. New York State Dept. of Corr. Servs., No. 97-CV-0477E(M), 1999 WL 1067588 (W.D.N.Y. Nov. 15, 1999). In a Memorandum and Order dated October 26, 2001 this Court dismissed all claims against defendants UCHS, John Doe and Jane Doe. Cole v. New York State Dept. of Corr. Servs., No. 97-CV-0477E(Sc), 2001 WL 1397854, (W.D.N.Y. Oct. 29, 2001). Familiarity with these prior decisions is presumed. The two remaining defendants — i.e., DOCS and the State (collectively "the state defendants") filed a motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure ("FRCvP") January 5, 2001 seeking to dismiss the remaining claims against them in their entirety. Oral argument on defendants' motion for summary judgment was held November 9, 2001 and such has thereafter been before this Court for disposition.
The state defendants had improperly filed their motion for summary judgment as a "cross-motion" to former defendant UCHS's motion for summary judgment. Such was not properly filed as a cross-motion, however, and it came as surprise to both plaintiff and this Court when the state defendants argued such motion January 12, 2001 in conjunction with UCHS's motion for summary judgment. Inasmuch as plaintiff had never had the opportunity to oppose the state defendants' motion for summary judgment, this Court did not "submit" such motion that day but subsequently issued a scheduling notice regarding such to allow plaintiff to file papers in opposition. Oral argument on the state defendants' motion for summary judgment was ultimately held November 16, 2001; however, eleven days thereafter plaintiff filed an improper and premature appeal from this Court's October 26, 2001 Memorandum and Order which had granted former defendant UCHS's motion for summary judgment and dismissed it from this case. The Clerk's file for this case was not returned from the Second Circuit Court of Appeals until July 16, 2002 thereby explaining why the decisionary process on this motion has taken over eighteen months from the date it was filed.
Pursuant to FRCvP 56(c) summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The party moving for summary judgment must demonstrate the "lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party" — Adickes v. H.S. Kress Co., 398 U.S. 144, 157 (1970) —; however, the opposing party may not rest upon conclusory statements in his pleadings but "must set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment" and, if "the evidence is merely colorable *** or is not significantly probative ***, summary judgment may be granted." Anderson, at 247-250. Furthermore, summary judgment must be granted when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. In such a situation, there can be no `genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, at 322-323.
When a defendant moves for summary judgment against a pro se plaintiff, such plaintiff must be given "actual notice, provided in an accessible manner, of the consequences of the *** failure to comply with the requirements of Rule 56." Irby v. New York City Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001). Plaintiff had been specifically informed of the requirements for responding to a motion for summary judgment and of the consequences of failure to so comply at least three times — viz., (1) by former defendant UCHS in its Memorandum of Law in Support of its Motion for Summary Judgment, (2) by this Court in its October 26, 2001 Memorandum and Order granting UCHS's motion for summary judgment and (3) by the state defendants in their Notice of Cross Motion for Summary Judgment and Memorandum of Law in Support of Cross-Motion for Summary Judgment. This Court accordingly finds that plaintiff has been more than adequately apprised of the requirements of FRCvP 56 and, indeed, he has properly responded to the state defendants' motion for summary judgment — filing a memorandum of law, affidavit with exhibits and statement of disputed facts pursuant to Rule 56 of this Court's Local Rules of Civil Procedure.
However, in addition to opposing the state defendants' motion for summary judgment on the merits, plaintiff has also filed a FRCvP 56(f) affidavit wherein he seeks a continuance to obtain discovery. FRCvP 56(f) states that, if
"it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."
A party opposing summary judgment pursuant to FRCvP 56(f) on the basis that he requires additional discovery
"must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts." Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 422 (2d Cir. 1989).
In his FRCvP 56(f) affidavit, plaintiff states that (1) the discovery he desires to obtain is "The abusing Women investigation the Society, Reinagle [sic] caused" which he seeks to obtain from the State, (2) that such discovery will establish that the defendants conspired against him, (3) that he attempted to obtain such discovery through FRCvP 37 and 60(b) motions and (4) that he was unsuccessful in obtaining such discovery because the Assistant Attorney General assigned to this case, Ann C. Williams, Esq., had not complied with his requests. Cole FRCvP 56(f) Aff. ¶ 10. Inasmuch as this Court will be dismissing plaintiff's section 1985(3) conspiracy claim against the state defendants because it is barred by the Eleventh Amendment to the United States Constitution and because the discovery requested by plaintiff — which the State has already stated under oath that it does not possess and as to which this Court has previously denied plaintiff's prior requests to compel the production on that basis — appears to have no bearing upon his Title VII claims, this Court will deny plaintiff's request for relief under FRCvP 56(f) and will address the state defendants' motion for summary judgment on the merits.
Such apparently refers to former defendant UCHS and Thomas H. Reinagel, the Administrator of former defendant UCCH. Plaintiff had alleged that such defendants had falsely stated that he abused women and that, as a result of such, the New York State Department of Health had begun an investigation.
Plaintiff filed a FRCvP 60(b) motion November 13, 2001 seeking to vacate this Court's October 26, 2001 Memorandum and Order granting former defendant UCHS's motion for summary judgment and dismissing it from the case. See infra.
Plaintiff had been hired as a temporary full-time Nurse II at the Orleans Correctional Facility ("Orleans") July 28, 1994 to cover for the permanent incumbent of such position, Peter Little, who had been on a leave of absence due to military service. Little had returned from military service and been reinstated to his position October 6, 1994 as a result of which plaintiff had been displaced; however, plaintiff had continued to be employed on a per diem basis as a Nurse II at Orleans. On November 21, 1994 plaintiff had been approved to work as a Nurse II on a per diem basis at Albion Correctional Facility ("Albion") in addition to Orleans. James Aff. ¶¶ 3-5, Exs. A-C. Cole Oct. 24, 2001 Aff. ¶¶ 12-14, Ex. C.
In the letter to plaintiff notifying him that he had been appointed to such position, DOCS had informed plaintiff that, because he was "appointed temporarily to a competitive position, such [serv]ice does not in any way qualify you for permanent appointment to state [serv]ice, such permanency may be granted only by passing the appropriate [civi]l service examination with a score high enough to be among the top [thre]e acceptors for appointment to a given location." James Aff. Ex. A. (The bracketed letters had been in the left margin of the letter and had been cut off on the photocopy of the letter attached to the affidavit.) Furthermore, plaintiff signed an Acknowledgment of Temporary Status July 28, 1994 wherein he acknowledged that "this is a temporary position, meaning that the State of New York incurs no obligation to continue my employment beyond — due to the end of certification by Civil Service." Ibid.
Elizabeth James, Nurse Administrator at Orleans.
Plaintiff applied for a posted position as a temporary full-time Nurse II at Albion and was notified that he was eligible for such position November 18, 1994. According to the eligibility list for such position submitted by the state defendants, there were five eligible applicants for this position — viz., (1) Kay S. Fortunato, (2) Rebecca Kenyon, (3) Robert Quinlan (4) plaintiff and (5) Mary Matlach; Fortunato and Kenyon had scores of 75 whereas Quinlan, plaintiff and Matlach had scores of 70. Plaintiff, however, has submitted a copy of his score card from the examination which resulted in the eligibility list for such position and such lists his score as 75. Fortunato was appointed to such position in December 1994. Plaintiff filed a discrimination charge with the EEOC May 25, 1995 alleging that the DOCS had discriminated against him on the basis of his sex by giving such position to Fortunato instead of to him because he was on a "preferred list" and because he was available to start such job immediately whereas Fortunato was not, but that the DOCS had nonetheless given such position to Fortunato and held it open for her until March 30, 1995, while he worked in such position on a per diem basis. Cole Oct. 24, 2001 Aff. ¶ 15, Exs. C, E; Fort Aff. ¶¶ 3, 5-6, Ex. 1.
Plaintiff states that he never received a right-to-sue letter in response to his May 25, 1995 charge.
Plaintiff is under the erroneous impression that, because he temporarily worked in the full-time Nurse II position at Orleans while Little was on military leave, he obtained some sort of "preferred" status under the New York Civil Service Law. Plaintiff has provided no legal support for such nor has the undersigned found any and, indeed, plaintiff's belief that his temporary service endowed him with some sort of preferred status is directly contradicted by the letter acknowledging his appointment to such position and the Acknowledgment of Temporary Status signed by him. See footnote 4.
Sandra Fort, Principal Clerk Personnel at Albion.
Plaintiff subsequently applied for a position as a permanent full-time Nurse II at Orleans which had been posted June 8, 1995 and was notified that he was eligible for such position July 18, 1995. DOCS had requested a budget waiver for such position; however, no budget waiver had been obtained before the eligibility list for such position expired, as a result of which all applicants therefor, including plaintiff, were notified September 28, 1995 that they would not be appointed to such position due to budget problems. On October 3, 1995 the budget waiver was obtained and such position was accordingly re-posted October 12, 1995. Plaintiff wrote to Joyce Reed, the personnel clerk at Orleans, October 25, 1995 stating that his resume was on file and that he had been advised that he was entitled to be "reinstated" to the permanent full-time Nurse II position at Orleans because he had temporarily held such position while Little had been on military leave. Carol A. Preiss, the Deputy Superintendent of Administrative Services at Orleans responded to plaintiff November 13, 1995 stating that, because he had never permanently held such position, he was not entitled to be reinstated to it and that it would be filled according to N.Y. Civil Service Law. James Aff. ¶ 9, Ex. G; Cole Oct. 29, 2001 Aff. ¶ 18, Ex. C.
Such was apparently the position that had been held by Little and, in addition to the full-time position for which plaintiff had applied, two part-time Nurse II positions had also been posted, one permanent and one temporary.
There is no evidence in the record indicating when or whether such position was filled and it does not appear that plaintiff re-applied for it after the budget waiver had been obtained and the position was re-posted. However, because plaintiff had been temporarily appointed to such position the date it was originally posted, see infra, this Court assumes that it had not been filled prior to plaintiff's termination.
Plaintiff was temporarily appointed to the posted full-time Nurse II position at Orleans June 8, 1995 while DOCS sought to permanently fill such position pursuant to N.Y. Civil Service Law. As a result of plaintiff's temporary appointment to the full-time Nurse II position at Orleans, he was informed that he was required to resign his per diem position at Albion by June 30, 1995. Plaintiff states that he had never sought to be temporarily appointed to the full-time Nurse II position at Orleans — as opposed to being permanently appointed to such position — and refused to submit the requested letter of resignation, as a result of which DOCS terminated his per diem position at Albion July 7, 1995 nunc pro tunc May 24, 1995. James Aff. ¶ 6, Ex. D; Cole Oct. 29, 2001 Aff. ¶ 15, Exs. D-E.
Plaintiff's supervisor at DOCS had been the aforementioned James who had prepared five Probationary Period — Evaluation Report's ("evaluations") on plaintiff, which were dated October 4, 1994, February 1, 1995, March 24, 1995, May 8, 1995 and August 22, 1995 respectively and each of which had recommended that plaintiff be continued on probation. Plaintiff had signed his first four evaluations without complaint. He however refused to sign his August 22, 1995 evaluation, stating that the state defendants were "trumping" paperwork on him — i.e., they "were trying to cover up a discrimination charge in Albion over at Orleans, and they were just documenting [him] out the door" — and filed a grievance with his union, the Public Employee Federation ("PEF") alleging that he was being retaliated against for having filed the May 25, 1995 discrimination charge. However, when shown a copy of his August 22, 1995 evaluation during his deposition, plaintiff admitted that it had actually been one of his "good ones" and that he would have signed it — but that because he had refused to sign it, his "real" August 22, 1995 evaluation must have been negative and the state defendants must have subsequently altered it to "cover up" the "real" negative evaluation. James Aff. ¶ 8, Ex. F; Cole Oct. 29, 2001 Aff. Exs. F, H; Cole Dep. at 218-230.
The evaluation reports stated that "probationary periods will be extended to the maximum" and provided three choices for the evaluator to recommend — viz., (1) "continuation of probation," (2) "permanent retention (final report only)" and (3) "termination."
On November 30, 1995 James formally counseled plaintiff for making allegedly false allegations (1) that the two nurses on the 3 p.m. to 11 p.m. shift, Gaesser and Quinlan, had been leaving at 10:30 p.m. and (2) telling nurse Lackey that Gaesser had been complaining about the "lazy day nurses not doing their job." Plaintiff stated that such counseling was a "harassment session" and refused to sign the memorandum to acknowledge receipt thereof. On December 29, 1995 James formally counseled plaintiff a second time, for allegedly exercising poor nursing judgment on December 15, 1995 which could have resulted in the death of an inmate. Plaintiff stated that he was not going to listen to this and that such is a bunch of "crap" and again refused to sign the memorandum to acknowledge receipt thereof. Plaintiff states that this counseling memorandum is "a fraudulent document" designed to "trump a file" on him in retaliation for his having filed a charge of discrimination in May of 1995. James formally counseled plaintiff a third time January 5, 1996 for failure to complete his work and leaving it for the following shift, for which he had already been informally counseled three times. Plaintiff responded that such counseling was harassment designed for the purpose of "trumping a set of files for [his] discrimination charge," and therefore refused to sign it. James Aff. ¶¶ 10-12, Exs. H-J; Cole Oct. 29, 2001 Aff. ¶¶ 19-21, Ex. J; Cole Dep. at 280-281, 288-292.
Plaintiff had allegedly telephoned the physician on call, Dr. Brij Sinha, M.D., at home and informed him that an inmate, Clayton Boehm, had chills, that plaintiff was having difficulty taking his temperature and that plaintiff suspected that he had pneumonia. As a result of plaintiff's description of Boehm's symptoms, Dr. Sinha told plaintiff to have him sent to Erie County Medical Center via a state van. Plaintiff had apparently failed to recognize that Boehm, who suffers from diabetes mellitis, was exhibiting signs of a myocardial infraction and/or congestive heart failure — Boehm was ultimately diagnosed as having suffered an acute myocardial infraction —, did not perform an electrocardiogram or check his blood sugar level and did not inform Dr. Sinha that Boehm also had "chest pain, diaphoresis, cough, elevated blood pressure (160/110), tachycardic at 140/min, respirations of 52 with shortness of breath" and was being given oxygen at 4L/min. Dr. Sinha states that had he been properly informed of Boehm's symptoms he would have ordered that he be transported to the nearest hospital via an ambulance. Apparently the inmates at Albion are always transported via ambulance whereas the inmates at Orleans are normally transported via state van. James Aff. ¶ 11, Ex. I; Cole Oct. 29, 2001 Aff. ¶ 20.
James prepared a sixth evaluation on plaintiff January 10, 1996 this time recommending that he be terminated; plaintiff again refused to sign the evaluation. On January 11, 1996 Lee P. Gould, Acting Director of Personnel at DOCS notified plaintiff that he was to be terminated from his temporary full-time Nurse II position at Orleans effective January 18, 1996. James Aff. ¶¶ 7, 13, Exs. E, K; Cole Oct. 29, 2001 Aff. ¶ 16, 22.
"The quality and completeness of the employee's work continues to be inadequate. Job duties have been discussed and documented on different occasions, discussed with the employee with no improvement noted. This work incompleteness and procrastination has affected relationships with nursing co-workers who regularly complain. The performance has created make-up work for other staff and caused delays in sick call, call-outs and clinics, and pharmacy renewals/updates.
"The employee has not been receptive to constructive criticism or discussions regarding his performance. He tends to dismiss his responsibility by rationalizing, denying, or at times blaming others.
"It is becoming increasingly difficult, as a supervisor, to speak to the employee. He frequently alludes to `harassment,' both verbally and once written in the nursing log.
"Nursing judgment has recently been questioned. A serious error in judgment during December 1995 put a seriously ill inmate in a life-threatening situation. This involved an inappropriate and dangerous call for emergency room transport via a state van instead of the necessary ambulance — based upon need and symptoms. This brings into serious question the employee's ability and judgment to perform in emergency situations and make the necessary decisions to protect the inmate and also the transporting security staff.
"Time and attendance is good. Dress and language are appropriate. Further training has been arranged and completed in phlebotomy skills by the employee receiving on-site training and practice." James Aff. Ex. K.
Plaintiff's first cause of action alleges that the state defendants discriminated against him on the basis of his sex in violation of Title VII by refusing to hire him for the permanent full-time Nurse II positions which had been posted at Albion in November of 1994 and at Orleans in June of 1995. Title VII makes it "an unlawful employment practice for an employer *** to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's *** sex ***." 42 U.S.C. § 2000e-2(a)(1). For discrete acts of discrimination under Title VII, such as failure to hire or retaliatory discharge, a claimant must file a charge with the EEOC within 300 days of the occurrence of the allegedly discriminatory conduct. 42 U.S.C. § 2000e-5(e)(1); National R.R. Passenger Corp. v. Morgan, ___ U.S. ___, 122 S.Ct. 2061, 2070-2073 (2002); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Butts v. City of New York Dept. of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993). A plaintiff may not commence a Title VII action in federal court unless he has filed a timely discrimination charge against his employer with the EEOC on the same basis as is asserted in his complaint and has received a right-to-sue letter against the Title VII defendant named in his complaint. 42 U.S.C. § 2000e-5(e); Holtz v. Rockefeller, 258 F.3d 62, 82-83 (2d Cir. 2001); Shah v. New York State Department of Civil Service, 168 F.3d 610, 613 (2d Cir. 1999); Vital v. Interfaith Medical Center, 168 F.3d 615, 619 (2d Cir. 1999); Tomka v. Seiler Corporation, 66 F.3d 1295, 1313-1314 (2d Cir. 1995); Butts, at 1401.
The Eleventh Amendment does not bar private suits against a state under Title VII. Fitzpatrick v. Bitzer, 427 U.S. 445, 451-457 (1976).
Plaintiff never filed an EEOC charge against the State and consequently never received the requisite right-to-sue letter. Accordingly both plaintiff's first and second causes of action, to the extent they raise Title VII claims against the State, must be dismissed. Furthermore, plaintiff's first cause of action under Title VII, which alleges that he was not appointed to the permanent full-time Nurse II positions in Albion in November of 1994 and at Orleans in June of 1995 because of his sex, must be dismissed as untimely. Both such discrete events of allegedly discriminatory conduct occurred more than 300 days prior to plaintiff having filed his August 12, 1996 EEOC charge, for which he received the March 11, 1997 right-to-sue letter upon which such cause of action is based.
Plaintiff's second cause of action alleges that the state defendants retaliated against him in violation of Title VII by terminating him because he had filed a charge with the EEOC May 25, 1995 alleging that they had discriminated against him on the basis of his sex. Title VII also makes it "an unlawful employment practice for an employer to discriminate against any of his employees *** because [that employee] has opposed any practice made an unlawful employment practice ***." 42 U.S.C. § 2000e-3(a). "The objective of this section is obviously to forbid an employer from retaliating against an employee because of the latter's opposition to an unlawful employment practice." Manoharan v. Columbia U. Col. of Phys. Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). When ruling on a motion for summary judgment in a Title VII case alleging retaliation, courts apply the three-part burden shifting analysis enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).
Plaintiff also appears to argue that the state defendants retaliated against him because of his May 25, 1995 EEOC charge by giving him a full-time Nurse II position at Orleans June 8, 1995 as part of a conspiracy to investigate and defraud him. Cole Dep. at 230-231, 274, 301-302.
"First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for [its actions]. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reason, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981).
Internal citations and punctuation omitted.
When applying the McDonnell Douglas burden shifting analysis, the court must remain cognizant that employment discrimination
"is often accomplished by discreet manipulations and hidden under a veil of self-declared innocence. An employer who discriminates is unlikely to leave a `smoking gun,' such as a notation in an employee's personnel file, attesting to a discriminatory intent. A victim of discrimination is therefore seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence. Consequently, in a Title VII action, where a defendant's intent and state of mind are placed in issue, summary judgment is ordinarily inappropriate." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). See also Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996).
Internal citations and punctuation omitted.
The burden that plaintiff must meet to survive summary judgment at the prima facie stage is de minimis — Tomka, at 1308 — and retaliation need not be the sole motivation for termination for an employer to be liable under Title VII. Reed v. A.W. Lawrence Co. Inc., 95 F.3d 1170, 1177-1178 (2d Cir. 1996). Nonetheless, a plaintiff still "must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
"To establish a prima facie case of retaliation, `a plaintiff must show participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action.'" Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 64 (quoting Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991)). A plaintiff can establish the causal connection "indirectly by showing that the protected activity was followed closely by discriminatory treatment *** or directly through evidence of retaliatory animus directed against" him by defendant. DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir.), cert. denied, 484 U.S. 965 (1987). Once the plaintiff has established a prima facie case, an inference of employment discrimination arises and "the burden then falls upon the employer to produce evidence that the employee was discharged for a legitimate, nondiscriminatory reason." Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir.), cert denied, 474 U.S. 829 (1985).
"Placing this burden of production on the employer serves a dual purpose. First, it enables the employer, by proffering legitimate reasons for the alleged discriminatory discharge, to rebut the inference of discrimination that arises from the proof of the prima facie case. In addition, the burden of production frames the factual issue with sufficient clarity to afford the employee a full and fair opportunity to demonstrate pretext. To this end, the employer's explanation of its reasons must be clear and specific." Id. at 996-997.
The burden of proof, however, always remains with the plaintiff to prove discrimination; the defendant need only state a legitimate nondiscriminatory reason for the termination and need not prove that such was its true reason. Burdine, at 253-255. Once the defendant has articulated a legitimate nondiscriminatory reason for its actions, the "plaintiff must show that there is a material issue of fact as to whether (1) the [defendant's] asserted reason for [its actions] is false or unworthy of belief and (2) more likely than not the unlawful basis was the real reason" for defendant's actions. Chertkova, at 92.
Citation and punctuation omitted.
Plaintiff engaged in protected activity which was known to DOCS when he filed his May 25, 1995 EEOC charge and he experienced an adverse employment action when he was terminated January 18, 1996. However, plaintiff has failed to demonstrate the existence of a genuine issue of material fact sufficient to establish a causal connection between such EEOC charge and such termination and has therefore failed to state a prima facie case of retaliation under his second cause of action. Assuming arguendo, that plaintiff had established a prima facie case of retaliatory discharge, DOCS has articulated a legitimate, nondiscriminatory reason for having terminated plaintiff — i.e., he had not been completing his work, had made false allegations against and was not getting along with his co-workers and had made a serious error in judgment which could have resulted in the death of a patient. In response to such, plaintiff has offered only conclusory allegations, without any evidentiary support, that DOCS's asserted non-discriminatory reasons are all untrue and were fabricated as part of a conspiracy to harass him and "trump" a paper trail to justify his termination. Accordingly, plaintiff's second cause of action will be dismissed.
Plaintiff's third cause of action alleges the existence of a conspiracy to deprive him of equal protection of the law and or equal privileges and immunities because of his sex in violation of 42 U.S.C. § 1985(3). The state defendants seek summary judgment dismissing this claim on the basis that it is barred by the Eleventh Amendment to the United States Constitution. The state defendants are correct — Penhurst State School Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978) ("There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit.") — and such claim will accordingly be dismissed. Furthermore, such claim would also have to be dismissed for the reasons stated in this Court's October 26, 2001 Memorandum and Order.
"[I]n any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators." 42 U.S.C. § 1985(3).
Plaintiff filed a motion pursuant to FRCvPs 59 and 60(b)(3) November 13, 2001 seeking to vacate this Court's October 26, 2001 Memorandum and Order granting former defendant UCHS's motion for summary judgment and dismissing it from the case on the basis that such Order had resulted from "fraud, misrepresentation and misconduct of [UCHS's] and State of New York Attorneys and clients." Cole Nov. 12, 2001 Aff. at 1. As "proof" thereof plaintiff has attached as an exhibit to his affidavit a copy of his October 22, 1996 retainer agreement with his former attorney Robert S. Roberson, Esq. Plaintiff contends that such proves that the dismissal of his state court action against UCHS had been appealed and therefore the summary judgment order issued by Justice Koshian is not res judicata. The retainer agreement is completely irrelevant and the remainder of plaintiff's motion consists of nothing more than allegations of a vast conspiracy against him; accordingly plaintiff's motion to vacate will be denied. In addition, plaintiff filed a second motion May 7, 2002 requesting that the United States Attorney General intervene in this case on his behalf; such motion will be denied for the reasons stated in this Court's July 25, 2000 Memorandum and Order denying plaintiff's June 9, 2000 motion which had requested the same relief.
This Court will not entertain any further motions by plaintiff; however, because this Order will be dismissing plaintiff's remaining claims and closing this case in this Court, plaintiff may now file an appeal.
Accordingly, it is hereby ORDERED that the state defendants' motion for summary judgment is granted, that plaintiff's motion to vacate is denied, that plaintiff's motion for the United States Attorney General to intervene on his behalf is denied, that the Clerk of this Court shall not accept any further motions in this case for filing by plaintiff and that this case shall be closed in this Court.