Opinion
99 Civ. 10031 (JGK)
March 15, 2001
OPINION AND ORDER
The plaintiff, Reverend Billy M. Jones, brings this action against his employer, the New York City Department of Correction ("DOC"), and various DOC officials in supervisory positions. The plaintiff, who is African American and a member of the Church of Our Jesus Christ of the Apostolic Faith, Inc., alleges that the defendants discriminated against him on the basis of his race and religion in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The plaintiff claims that the defendants subjected him to a work environment hostile to his race, failed to reasonably accommodate his religious practices, and retaliated against him for filing complaints about this allegedly discriminatory behavior. The defendants move pursuant to Fed.R.Civ.P. 56 for summary judgment with respect to all of the plaintiff's claims.
I. A.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party.See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986)
On a motion for summary judgment, once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with specific facts to show there is a factual question that must be resolved at trial. See Fed.R.Civ.P. 56(e). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible."Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983).
B.
The plaintiff has been employed as a correction officer by the DOC since June 7, 1990 and is also a licensed and ordained minister for the Church of Our Jesus Christ of the Apostolic Faith, Inc. (Defts.' Rule 56.1 Stint. ¶¶ 1, 2; Pl.'s Rule 56.1 Stmt. ¶¶ 1, 2.)
1.
The plaintiff describes a series of incidents that occurred at his workplace at Rikers Island from 1994 to 1996. On or about July 11, 1994, racist graffiti, including virulent racial slurs, was found on a bathroom wall in the Rikers Island Security Control building. (Defts.' Rule 56.1 Stint. ¶ 8; Pl.'s Rule 56.1 Stint. ¶ 7.) The plaintiff became aware of the graffiti when Assistant Deputy Warden Gerard Hemmerle ("Hemmerle") informed the staff about the incident at morning roll call the day the graffiti was discovered. (Defts.' Rule 56.1 Stmt. ¶ 9; Pl.'s Rule 56.1 Stmt. ¶ 8.) The plaintiff testified at his deposition that he personally observed the graffiti after the roll call. (Defts.' Rule 56.1 Stmt. ¶ 9; Pl.'s Rule 56.1 Stmt. ¶ 9.) The plaintiff claims that while Hemmerle declared that he wanted the behavior to stop, had pictures taken of the graffiti, and directed it to be painted over, no other investigatory or remedial actions were taken by the DOC. (Defts.' Rule 56.1 Stmt. ¶ 10; Pl.'s Rule 56.1 Stmt. ¶ 10.) The plaintiff alleges that sometime in 1994, he learned of an incident where a dead fish was left on the desk of one of the African American correction officers who had complained about the graffiti. (Pl.'s Rule 56.1 Stmt. ¶ 11.) On August 12, 1994, Correction Officer Donald Winkfield ("Winkfield") discovered slurs inside a logbook and on a desk drawer in a booth at gate 9 of the facility, and reported the incident to the plaintiff a day or two later. (Pl.'s Rule 56.1 Stmt. ¶ 3; Declaration of Victor M. Wilson, dated August 3, 2000, at Ex. 1.) The plaintiff testified that the slurs were racial, mentioned several officers, and that he and Winkfield reported the discovery of the slurs to Captain Clifford Hazel. (P1.'s Rule 56:1 Stmt. ¶¶ 3-5.) The materials were confiscated but no other investigation of the incident was undertaken by the DOC. (Pl.'s Rule 56.1 Stmt. ¶ 6.).
According to the plaintiff, at various times during 1995 and 1996, the windows of the plaintiff's car and the cars of several other African American correction officers were shot with a BB gun. (Pl.'s Rule 56.1 stint. ¶ 12.) In June 1995, after the plaintiff sought to discuss alleged incidents of discrimination with Hemmerle, Hemmerle commented to the plaintiff that he should "look around and see who is the minority." (Defts.' Rule 56.1 Stmt. ¶ 11; Pl.'s Rule 56.1 Stmt. ¶ 13.) In 1995 or 1996, a note regarding Louis Farrakhan, which the plaintiff alleges was racist, was placed in the locker of Correction Officer Darian Davis ("Davis"). (Defts.' Rule 56.1 Stmt. ¶ 12; Pl.'s Rule 56.1 Stmt. ¶ 15.) Davis reported the incident and the plaintiff saw the note. (Defts.' Rule 56.1 Stmt. ¶ 13; Pl.'s Rule 56.1 Stmt. ¶¶ 16, 17.) The plaintiff claims that the DOC did not investigate the incident. (Pl.'s Rule 56.1 Stmt. ¶ 18.)
In 1996, Winkfield found a blatant racist drawing in a logbook at gate 5 of the prison. (Defts.' Rule 56.1 Stmt. ¶ 14; Pl.'s Rule 56.1 Stmt. ¶ 19.) The plaintiff learned of the incident shortly after it took place but only saw the drawing when the EEOC provided him with a copy. (Defts.' Rule 56.1 Stmt. ¶ 14; Pl.'s Rule 56.1 Stmt. ¶ 20.) The plaintiff alleges that the DOC did not investigate the incident or take any disciplinary or remedial action with respect to it. (Pl.'s Rule 56.1 Stmt. ¶ 21.) In June 1996, slurs about the plaintiff were discovered in the gate 8 logbook. (Defts.' Rule 56.1 Stmt. ¶ 15; Pl.'s Rule 56.1 Stmt. ¶ 22.) The plaintiff alleges that the slurs were racial and were also directed against at least one other African American officer. (Pl.'s Rule 56.1 Stmt. ¶ 22.) The plaintiff reported the incident to Warden Stankovich and Deputy Warden Johnson. (Pl.'s Rule 56.1 Stmt. ¶ 23.) The plaintiff claims that he was disciplined for the logbook incident in July 1996 and received a corrective interview. (Pl.'s Rule 56.1 Stmt. ¶ 24.) The defendants claim that the plaintiff was disciplined for other reasons. (Defts.' Rule 56.1 Stmt. ¶ 67.)
2.
The plaintiff also describes a series of events where he claims that the defendants failed to reasonably accommodate the practice of his religion. In 1995, the plaintiff requested leave to attend his church's annual religious convocation in Greensboro, North Carolina in August 1995 and was asked to provide "mutuals" or voluntary swaps of days off with fellow correction officers. The plaintiff's original two requests for mutuals were denied based on a DOC policy prohibiting mutuals on the first and fourth days of an officer's tour of duty during the summer. The plaintiff eventually received permission to use mutuals and a vacation day to attend the convocation from August 15-17, 1995. (Defts.' Rule 56.1 Stmt. ¶¶ 19-26; Pl.'s Rule 56.1 Stmt. ¶¶ 25-26.) The plaintiff claims that he arranged mutuals for August 15 and 17, and that August 16 would be taken as a vacation day. (Pl.'s Rule 56.1 Stmt. ¶¶ 26-27.)
The plaintiff was marked AWOL and charged two vacation days instead of one for the time he was at the convention. (Defts.' Rule 56.1 Stmt. ¶ 27.) The plaintiff alleges that the DOC had canceled the mutual and his timecard was altered. (Pl.'s Rule 56.1 Stmt. ¶ 28.) The defendants claim that there was an honest mistake and that the plaintiff filed a grievance about the incident and the time was eventually restored. (Defts.' Rule 56.1 Stmt. ¶ 28.)
The plaintiff alleges that shortly after he asked to attend the religious convocation, he was assigned to less desirable posts in the Rikers Island Security Unit. (Pl.'s Rule 56.1 Stmt. ¶¶ 35-37.) The plaintiff alleges that he was assigned to punishment posts and ridiculed by his co-workers. (Pl.'s Rule 56.1 Stmt. ¶ 39.) The defendants claim that the assignments were pursuant to a change in DOC policy and the plaintiff was assigned to the posts for testing purposes. (Pl.'s Rule 56.1 Stmt. ¶¶ 40-41.) The plaintiff filed a charge with the EEOC dated May 14, 1996 alleging religious discrimination. (Defs.' Rule 56.1 Stmt. ¶ 4.)
On or about July 9, 1996, the plaintiff requested permission to attend another religious convocation in Columbia, South Carolina from August 3-6, 1996. (Defts.' Rule 56.1 Stmt. ¶ 29; Pl.'s Rule 56.1 Stmt. ¶ 29.) The plaintiff was told on July 11, 1996 to submit mutuals. (Defts.' Rule 56.1 Stmt. ¶ 30; Pl.'s Rule 56.1 Stmt. ¶ 30.) The plaintiff requested that he be able to use his own vacation time instead of mutuals because of his earlier experience with the allegedly canceled mutuals. (Defts.' Rule 56.1 Stmt. ¶ 31; Pl.'s Rule 56.1 Stmt. ¶ 31.) Other than a statement that he should submit mutuals, the plaintiff did not receive any further communication from the DOC in response to his request and did not attend the conference. (Pl.'s Rule 56.1 Stmt. ¶ 32.) The plaintiff was allowed to use annual leave time to attend a religious convocation in 1998 but was denied permission to use annual leave to attend a convocation in 1999. (Defts.' Rule 56.1 Stmt. ¶¶ 33-41; Pl.'s Rule 56.1 Stmt. ¶ 33.)
In December 1996, the plaintiff was suspended for approximately two days after allegedly disrupting a roll call on December 13, 1996. (Defts.' Rule 56.1 Stmt. ¶¶ 71-72.) After an administrative hearing, a penalty of fifteen days suspension was recommended and adopted by the DOC. (Defts.' Rule 56.1 Stmt. ¶¶ 73-74.) The plaintiff appealed the decision to the Civil Service Commission and the Commission upheld the decision. (Defts.' Rule 56.1 Stmt. ¶ 75.) The plaintiff maintains that he was not at fault because Hemmerle provoked him and there were a number of procedural irregularities in his suspension. (Pl.'s Rule 56.1 Stmt. ¶¶ 51-61.)
On or about December 14, 1996, the plaintiff took sick leave and returned in December 1997. (Defts.' Rule 56.1 Stmt. ¶¶ 3, 79; Pl.'s Rule 56.1 Stmt. ¶ 63.) On December 18, 1996, the plaintiff was transferred from the Special Operations Division to another correctional facility. (Defts.' Rule 56.1 Stmt. ¶ 77; Pl.'s Rule 56.1 Stmt. ¶ 64.) The plaintiff's weapon was taken after the suspension and not returned despite numerous requests. (Defts.' Rule 56.1 Stmt. ¶ 83; Pl.'s Rule 56.1 Stmt. ¶¶ 62-63.) On January 21, 1997, the plaintiff filed a second complaint with the EEOC charging retaliation in violation of 42 U.S.C. § 2000e-3 (a). (Defts.' Rule 56.1 Stmt. ¶ 4; Pl.'s Rule 56.1 Stmt. ¶ 65.) On June 16, 1998 the EEOC issued a determination regarding the two complaints filed by the plaintiff. The EEOC determined that, based on the failure to respond to the charges, there was reasonable cause to believe that the Department of Correction had failed to provide a reasonable accommodation for the plaintiff's religious beliefs and had retaliated against him. (Pl.'s Rule 56.1 Stmt. ¶ 66.)
The plaintiff alleges that on August 6, 1998, he was given permission to attend his church's annual religious convocation in Secaucus, New Jersey, and that the next day charges regarding the December 1996 roll call incident were revived. (Pl.'s Rule 56.1 Stmt. ¶ 67.) The plaintiff also alleges that he was suspended for fifteen days in March 1999. (Pl.'s Rule 56.1 Stmt. ¶ 68.)
The plaintiff filed further charges with the EEOC alleging retaliation and discrimination because of race. (Defts.' Rule 56.1 Stmt. ¶ 4.) On July 7, 1999, the plaintiff received a Right to Sue letter from the EEOC. (Pl.'s Rule 56.1 Stmt. ¶ 69.) The plaintiff filed further charges with the EEOC alleging retaliation and discrimination because of race. (Defts.' Rule 56.1 Stmt. ¶ 4.)
II.
The defendants first move for summary judgment on the plaintiff's hostile work environment claim. To survive a motion for summary judgment on a claim of hostile work environment harassment, the plaintiff must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal quotations and citations omitted); see also Thompson v. American Eagle Airlines. Inc., No. 99 Civ. 4529, 2000 WL 1505972, at *6 (S.D.N.Y. Oct. 6, 2000). "[T]he plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." Cruz, 202 F.3d at 570 (internal quotations and citations omitted); accord Whidbee v. Garzarelli Food Specialties. Inc., 223 F.3d 62, 69 (2d Cir. 2000). The plaintiff must show that based on the totality of circumstances the conduct has created an "objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive. . . ." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 23 (1993). The circumstances "may include 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." Id. Incidents need not be in the plaintiff's presence or directed at the plaintiff to support his hostile work environment claim. See Schwapp v. Town of Avon, 118 F.3d 106, 111-12 (2d Cir. 1997).
The defendants have failed to establish that summary judgment should be entered dismissing the claim of discrimination based on a hostile work environment. The defendants claim that the plaintiff has not established there was a hostile work environment because he complains of only six racial incidents over a span of ten years of employment. However, the incidents are concentrated from 1994 to 1996 and are sufficiently serious to conclude that they altered the conditions of the plaintiff's working environment. They involved virulent racial slurs, comments, and graffiti. These incidents were serious, repeated, and sufficiently concentrated in time to have at least raised an issue of fact as to whether they altered the conditions of the plaintiff's employment. Moreover, the plaintiff points to plainly severe incidents where a dead fish was left on the desk of an African American officer who had complained about graffiti, and where the windows of cars belonging to African American officers were shot at with BB's. The incidents described included humiliating and physically threatening incidents. Taken together, the plaintiff has described an environment that a reasonable person would find hostile or abusive. Whether the plaintiff will be able to prove his allegations is a question for the trier of fact. See. e.g., Howley v. Town of Stratford, 217 F.3d 141, 153-56 (2d Cir. 2000);Schwapp, 118 F.3d at 110-12; Morris v. CNY Centro, Inc., 99 F. Supp.2d 241, 247-48 (N.D.N.Y. 2000); Copeland v. Rosen, 38 F. Supp.2d 298, 304-06 (S.D.N.Y. 1999).
The defendants also argue that they should not be liable for any allegedly hostile work environment. The plaintiff must provide a basis for imposing liability on the employer for the conduct creating the hostile environment. See Howley, 217 F.3d at 154 (citations omitted). There is a presumption that an employer is vicariously liable for a hostile work environment created by a supervisor of a victimized employee. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); see also Cruz, 202 F.3d at 572 n. 8. Where there has been no tangible employment action taken, an employer may establish an affirmative defense to liability by proving: "(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." Id.
An employer may also be liable for a hostile work environment caused by a plaintiff's co-workers. However, an employer is not liable for co-worker harassment unless the employer "failed to provide a reasonable avenue for complaint or if it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action." Howley, 217 F.3d at 154 (internal quotations and citations omitted); accord Ouinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998).
The defendants argue that any hostile work environment cannot be attributed to them because only one hostile comment can be attributed to a supervisory official. However, the DOC may also be liable for a hostile work environment created by its employees. The plaintiff claims that he repeatedly informed the DOC of hostile incidents by co-workers. If the DOC did not respond reasonably to those complaints, then it could be liable for a hostile work environment created by its employees. The defendants have not demonstrated that their response to the complaints was reasonable. Thus, there are genuine issues of material fact as to whether the DOC is liable for the allegedly hostile environment. The defendants' motion for summary judgment dismissing the plaintiff's hostile work environment claim must be denied.
III.
The defendants next move for summary judgment on the plaintiff's claim that they discriminated against him by not reasonably accommodating his religious practices.
Title VII prohibits discrimination by an employer against an employee because of the employee's religion. 42 U.S.C. § 2000e-2 (a)(1). Title VII defines "religion" to include" all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). "A plaintiff in a [Title VII) case makes out a prima facie case of religious discrimination by proving: (1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; (3) he or she was disciplined for failure to comply with the conflicting employment requirement." Philbrook v. Ansonia Board of Educ., 757 F.2d 476, 481 (2d Cir. 1985) (citations omitted),remanded on other grounds, 479 U.S. 60, 68 (1986); accord Cosme v. Henderson, No. 98 Civ. 2754, 2000 WL 1682755, at *5 (S.D.N.Y. Nov. 9, 2000); Gordon v. MCI Telecomm. Corp., 791 F. Supp. 431, 434 (S.D.N.Y. 1992).
If the plaintiff has established his prima facie case, the employer then has the burden to show that it made good faith efforts to provide the employee with a reasonable accommodation or that providing a reasonable accommodation would cause undue hardship on the conduct of the employer's business. See, e.g., Shelton v. Univ. of Medicine Dentistry of New Jersey, 223 F.3d 220, 224 (3d Cir. 2000); Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681-82 (9th Cir. 1998); Kalsi v. New York City Transit Auth., 62 F. Supp.2d 745, 757 (E.D.N.Y. 1998). The employer is only required to show that it has provided the employee with a reasonable accommodation to meet its burden under Title VII and has no duty to provide a particular requested accommodation. Ansonia Board of Educ., 479 U.S. at 68. The employer may avoid liability on the ground of undue hardship by demonstrating it would incur more than a de minimis cost by providing a reasonable accommodation. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).
The defendants first argue that the plaintiff has not met the first prong of the prima facie test because he conceded that his religion did not prevent him from working whenever he was scheduled. However, it was a religious practice for the plaintiff to attend his religious convocations and Title VII encompasses all aspects of religious observance and practice, even those that are not specifically required by the religion.See, e.g., Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993). The plaintiff has thus made a sufficient showing to satisfy the third prong of a prima facie test. The defendants do not argue on this motion that the plaintiff has failed to meet the other aspects of a prima facie case. Therefore, the plaintiff has met its burden on this motion of presenting sufficient evidence of a prima facie case of religious discrimination.
The defendants next argue that they met the requirements of Title VII by providing the plaintiff with a reasonable accommodation. The plaintiff alleges that in August 1995, his request to attend a religious meeting was initially denied and then granted. He also claims that after he left to attend the meeting, the accommodation was canceled and he was marked AWOL. The defendants respond that this was a mistake caused by a new timekeeper but they have not submitted an affidavit or evidence sufficient to support this assertion. If the DOC revoked its permission to attend the convocation without reason, then the plaintiff may have established that the defendants did not provide him with a reasonable accommodation. See, e.g., Heller, 8 F.3d at 1440 ("The employee whose employer gives permission and then takes it away is no better off, and is perhaps worse off, then one whose employer never gave permission at all.") The defendants also argue that the plaintiff was never disciplined because the time was restored, but the plaintiff alleges that he suffered other forms of adverse action as a result of his attendance at the convocation such as his assignment to allegedly less desirable posts.
The plaintiff also claims that he was not able to attend conferences in 1996 and 1999 because the DOC required him to use mutuals if he wanted to attend. There is a question of fact as to whether mutuals are a reasonable accommodation given the plaintiff's past experience with them and their alleged revocation. The defendants allege that they could only offer inutuals because allowing the plaintiff to take vacation would violate a seniority agreement. However, the plaintiff points out without contradiction that he was allowed to use annual leave in the summer of 1998.
Therefore, the defendants' motion for summary judgment dismissing the plaintiff's claims that he was discriminated against on the basis of his religion must be denied.
IV.
Title VII makes it "an unlawful practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3 (a). The phrase "opposed any practice" includes an individual's complaint to his supervisor. See Lambert v. Genesee Hospital, 10 F.3d 46, 55 (2d Cir. 1993). Claims of retaliation are analyzed according to the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See Cosgrove v. Sears, Robuck Co., 9 F.3d 1033, 1038-39 (2d Cir. 1993). The plaintiff must first establish a prima facie case of retaliation. If the plaintiff succeeds in making out a prima facie case the burden of production shifts to the defendant to articulate a legitimate, nonretaliatory reason for the adverse employment action. If the defendant meets that burden, the plaintiff has the opportunity to demonstrate that the defendant's proffered reason was merely a pretext for retaliation. See Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999);Quinn, 159 F.3d at 768-69. A violation may be found if the adverse employment action was based in part on a retaliatory purpose, even if that was not the sole motive. See Cosgrove, 9 F.3d at 1039; Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir. 1986); Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 410 (S.D.N.Y. 1996). Once the plaintiff demonstrates that a retaliatory factor played a "motivating part" in the adverse employment decision, the defendant must demonstrate that it would have made the same decision based on the legitimate factor alone. Cosgrove, 9 F.3d at 1040.
To make out a prima facie case of retaliation, a plaintiff must show: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action. See Gordon v. New York City Board of Educ., 232 F.3d 111, 113 (2d Cir. 2000); Richardson, 180 F.3d at 443; Quinn, 159 F.3d at 769. To establish that an activity was protected, a plaintiff need only prove that he was acting under a good faith belief that the activity was of the kind covered by the statute. Cosgrove, 9 F.3d at 1039. "Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action."Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); see also DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987); Gordon, 232 F.3d at 117; Fowler v. New York Transit Auth., No. 96 Civ. 6796, 2001 WL 83228, at *2.3 (S.D.N.Y. Jan. 31, 2001)
The defendants concede that the plaintiff engaged in protected activities that were known to the defendants. The plaintiff filed an EEO charge with the City in 1995 (Pl.'s Rule 56.1 Stmt. ¶ 46), filed a total of 5 EEOC charges beginning on May 16, 1996, made an informal complaint to an officer about racial slurs allegedly written in a logbook in June of 1996, and made a number of other informal complaints.
The defendants argue that the plaintiff has not established a prima facie case by showing that he was subject to adverse employment decisions. "A materially adverse change [in employment] might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary . . . or other indices . . . unique to a particular situation." Galabya v. New York City Board of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citations and internal quotations omitted); accord Fowler, 2000 WL 83228, at *4 Whether an action is adverse is not defined solely in terms of job termination or reduced wages and benefits, and less flagrant reprisals by employers may be adverse. See, e.g., Wanainaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997); Fowler, 2000 WL 83228, at *4.
The plaintiff has offered sufficient evidence of adverse employment actions to survive this motion for summary judgment. The plaintiff was suspended without pay for approximately two days in December of 1996 (Defts.' Rule 56.1 Stmt. ¶¶ 71-72), claims he was suspended for fifteen days in March 1999 (Pl.'s Rule 56.1 Stmt. ¶ 68), lost the right to carry a firearm (Defts.' Rule 56.1 Stmt. ¶ 83; Pl.'s Rule 56.1 Stmt. ¶¶ 62-63), and was transferred to what he alleges was a less desirable facility on December 18, 1996 (Defts.' Rule 56.1 Stmt. ¶ 77; Pl.'s Rule 56.1 Stmt. ¶ 64). See, e.g., De La Cruz v. New York City Human Res. Admin. Dep't of Social Serv., 82 F.3d 16, 21 (2d Cir. 1996) (holding that transfer to a less desirable unit can be a materially adverse change in employment).
The defendants also argue that the plaintiff has not produced sufficient evidence to infer that the alleged adverse actions were caused by retaliation. The plaintiff argues that his suspension in December 1996 and his transfer to a less desirable Position were caused by his prior complaints including the May 1996 EEOC complaint and the June 1996 informal complaint. While the defendants contend that the actions taken against the plaintiff were too remote to infer that they were motivated by retaliation for protected activity, the Court cannot say that the defendants have shown that the plaintiff's evidence is so insufficient as to warrant dismissal of these claims as a matter of law. See, e.g., DeCintio, 821 F.2d at 115-16; Benedict v. Town of Newburgh, 125 F. Supp.2d 675, 678-79 (S.D.N.Y. 2000); Robinson v. Time Warner Inc., 92 F. Supp.2d 318, 333-34 (S.D.N.Y. 2000).
The defendants argue that the plaintiff's suspension was for a legitimate, non-retaliatory reason because it was pursuant to the findings of an administrative hearing. They claim that the doctrine of collateral estoppel precludes the Court from reconsidering the facts of the events giving rise to the claim because they have already been decided.
This argument would not lead to dismissal of the plaintiff's retaliation claim because the plaintiff relies on several allegedly retaliatory actions and not simply his suspension. In any event, the administrative determination is not dispositive. The court must give administrative proceedings the same preclusive effect as would a New York Court. See DeCintio, 821 F.2d at 116-17. In applying collateral estoppel to an issue, "the burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in prior action or proceeding."Id. at 117 (citation omitted). The defendants have not met their burden at this stage. The fact that an administrative body made findings regarding the incident between the plaintiff and Hemmerle does not preclude a finding of retaliation. The defendants have not established that the hearing officer considered and rejected an argument that the plaintiff was being singled out in retaliation for engaging in protected activity, and the plaintiff need only show that his suspension was motivated at least in part by retaliation not that retaliation was the only cause of his suspension.
Because there are genuine issues of material fact in dispute, the defendants' motion for summary judgment for summary judgment dismissing the plaintiff's retaliation claim must also be denied.
V.
The individual defendants correctly argue that as individual agents of their employer they cannot be liable under Title VII. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995). The plaintiff does not respond to this argument. Therefore, the plaintiff has abandoned his claims against these defendants and the motion for summary judgment by defendants Commissioner Bernard Kerik, Deputy Commissioner of E.E.O. Louis Burgos, Jr., Captain Joe Dike, Deputy Warden Walter Johnson, Warden David Schoenfield, Asst. Deputy Warden Gerald Hemmerle, and Warden J. Stankovich must be granted dismissing all of the plaintiff's claims against them.
CONCLUSION
The defendants' motion for summary judgment dismissing the claims against the DOC is denied in its entirety. The defendants' motion for summary judgment dismissing the claims against defendants Commissioner Bernard Kerik, Deputy Commissioner of E.E.O. Louis Burgos, Jr., Captain Joe Dike, Deputy Warden Walter Johnson, Warden David Schoenfield, Asst. Deputy Warden Gerald Hemmerle, and Warden J. Stankovich is granted in its entirety.
SO ORDERED.