Opinion
98 Civ. 1594 (RPP).
June 2, 2000.
Eric R. Seifert, Scheurer, Wiggin Hardy, LLP, New York, New York, for Plaintiff.
Michael D. Hess, Corporation Counsel of the City of New York, New York, New York, for defendant.
OPINION AND ORDER
Defendant New York City Health and Hospitals Corporation ("HHC") moves, pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, for summary judgment dismissing the civil rights claims of its employee, plaintiff Ramon Ramsey ("Ramsey"). For the reasons that follow, the motion is denied in part and granted in part.
Background
The following facts, taken from the parties' Local Rule 56.1 Statements and the record evidence, are undisputed.
Plaintiff, an African American, was appointed by HHC as a maintenance worker at Bellevue Hospital Center ("Bellevue") on February 22, 1988. (Def.'s 56.1 Stmt. ¶ 1-2.) The Maintenance Department at Bellevue is comprised of several specialty shops, and maintenance workers' responsibilities vary according to the shops to which they are assigned. (Def's 56.1 Stmt. ¶ 3-4.) While working at Bellevue, plaintiff was assigned, at various times, to the plumbing shop, the Old Bellevue campus, the Patient Equipment Shop, and the engineering shop. (Pl.'s 56.1 Stmt. ¶¶ 5, 22; Def.'s 56.1 Stmt. ¶ 61.)
I. Plaintiff's Employment History at Bellevue
Plaintiff received an unsatisfactory evaluation for his initial period of employment from 1988 to 1989, allegedly due to his poor attendance record, failure to follow instructions, and difficulty in getting along with fellow workers. (Def's 56.1 Stmt. ¶¶ 8-9.) These problems led to disciplinary actions, recurring warning notices, and counseling for insubordination. (Def.'s 56.1 Stmt. ¶¶ 11-14.) However, starting in 1991 and continuing through the time period relevant for this action, plaintiff's work evaluations were satisfactory or better. (Def.'s 56.1 Stmt. ¶ 10.)
On January 23, 1996, plaintiff deliberately or negligently caused Vezza to be injured by a large hand truck in a wide hallway, after which incident plaintiff refused to turn over his keys and identification. (Def's 56.1 Stmt. ¶ 24.) Plaintiff was suspended for four weeks starting on January 25, 1996 because of this incident, and misconduct and gross misconduct charges were filed against plaintiff on February 7, 1996. (Def's 56.1 Stmt. ¶¶ 23, 25-26.) After plaintiff's four week suspension, HHC directed him to undergo a psychiatric examination. (Def.'s 56.1 Stmt. ¶ 28.)
Dr. Steven A. Fayer, the psychiatrist who examined plaintiff at HHC's request, found that "Mr. Ramsey does present with significant psychiatric difficulties . . . Mr. Ramsey comes across as defiant, aggressive, and certainly as a man who does not take supervision or criticism well." (Def.'s 56.1 Stmt. ¶ 29.) Dr. John Bolling, a psychiatrist retained by plaintiff, also examined him in 1996. (Def.'s 56.1 Stmt. ¶ 31.) In his report, Dr. Bolling noted that plaintiff "reports that he has had to suffer many racial and ethnic abuses on his job," and that plaintiff's "oppositional and defiant behavior seems to [be] a realistic self-protective mechanism against what he perceives as overwhelming racist violations of his rights and rules of the work environment." (Declaration of John Weiss (hereinafter "Weiss Decl."), Ex. Z at 6.)
Plaintiff's supervisor, E. Corsini, complained about plaintiff's attitude on March 15, 1996 and suggested that plaintiff be reassigned. (Def's 56.1 Stmt. ¶ 22.) On May 9, 1996, plaintiff was reassigned to the engineering department. (Def's 56.1 Stmt. ¶¶ 1; Pl.'s 56.1 Stmt. ¶ 22.)
II. Settlement of Plaintiff's Improper Practice Petition
Plaintiff filed a Verified Improper Practice Petition on April 8, 1996 against Angelo D'Amico ("D'Amico"), a director of maintenance at HHC, Manfred Tichter ("Tichter"), also a director of maintenance at HHC, Leonard Menna ("Menna"), a supervisor and former director of maintenance at HHC, Victor Vezza ("Vezza"), a supervisor at HHC, Eleanor Foreman, a labor relations officer for HHC, and Noel McFarlane ("McFarlane"), the HHC EEO Officer. (Def's 56.1 Stmt. ¶ 32.) A Step 1A Conference was held on February 15, 1996 and a Step II Hearing was held on October 30, 1996, after which proceedings plaintiff was dismissed effective January 10, 1997. (Def's 56.1 Stmt. ¶ 27.) On September 5, 1997, plaintiff signed a Stipulation of Settlement which resolved his Verified Improper Practice Petition. (Def.'s 56.1 Stmt. ¶ 34.) Pursuant to the Stipulation of Settlement, HHC withdrew its January 10, 1997 termination of plaintiff and reinstated plaintiff as a Maintenance Worker at Goldwater Hospital Center, effective September 2, 1997. (Weiss Decl., Ex. BB, at 1.)
III. Plaintiff's Complaints against His Supervisors at Bellevue
Between 1992 and 1995, plaintiff filed many union grievances against his supervisors at Bellevue. On December 8, 1992, plaintiff filed a grievance against Menna for trying to "dock" plaintiff's pay. (Def.'s 56.1 Stmt. ¶ 39.) In a grievance filed on January 5, 1993, plaintiff described incidents between himself and Vezza, "the objective of [which] are to make me lose my temper and explode, so management can claim an insubordination charge against me in labor relations." (Def.'s 56.1 Stmt. ¶ 40.) On January 15, 1993, plaintiff filed a grievance claiming that Menna and Vezza were denying him "an equal share of overtime work and significant amounts of money." (Def.'s 56.1 Stmt. ¶ 37.) On October 20, 1995, plaintiff filed a grievance complaining of redeployment of maintenance staff, Vezza's rejection of plaintiff's suggestions regarding plaintiff's work assignments, and the refusal of Tichter, D'Amico, and Vezza to acknowledge and remedy plaintiff's need for assistance in maintaining the old Bellevue campus and the C D buildings. (Def.'s 56.1 Stmt. ¶ 41; Pl.'s 56.1 Stmt. ¶ 27.) Plaintiff filed another grievance against Vezza on October 27, 1995.
On October 18, 1995, plaintiff filed a complaint with the HHC Office of Affirmative Action and Equal Employment Opportunity (hereinafter "HHC EEO Office"), in which he described his charges of discrimination as follows:
L. Menna — former director of Maint./Harassment while on duty, false insubordination charges and loss of wages and overtime attendance tampering. V. Vezza — provisional machinist/harassment, employment threats, attempted intimidation, loss of overtime wages. False insubordination charges, unfair working conditions, denied overtime work due to labor relations grievance charges filed. Misuse of municipal power in supervisor-employee labor issues. A. D'Amico — Assoc, Director of Facilities Management. Unfair working conditions, attempted intimidation, threat of disciplinary action and directly verbally abused (cursed out while on duty).
(Def.'s 56.1 Stmt. ¶ 45.)
McFarlane sent a letter to plaintiff on January 4, 1996 which stated: "after meeting with you several times, I find it impossible to make a probable cause determination of your allegations of harassment or discrimination. Upon review of your Labor Relations file, particularly your most recent denials of numerous grievances, it appears you are seeking any venue for relief" (Def.'s 56.1 Stmt. ¶ 46.) A copy of this letter was received by the HHC Labor Relations Board on January 5, 1996. (Weiss Decl. Ex. GG.)
The letter was incorrectly dated January 4, 1995.
On June 14, 1996, plaintiff filed a Notice of Claim with the New York State Division of Human Rights, charging HHC "with an unlawful discriminatory practice by denying me equal terms, conditions and privileges of employment because of my race and color and in retaliation for opposing Respondent's discriminatory practices, in violation of New York State Human Rights Law, Section 296." (Def's 56.1 Stmt. ¶ 47; Weiss Decl., Ex. HH.) In an amendment to that charge, plaintiff alleged, "I, Ramon Ramsey, after filing multiple union grievances against agents of Bellevue Hospital Centers Facilities Management Dept. for harassment and employment discrimination have been fired/terminated in retaliation for those filings." (Def.'s 56.1 Stmt. ¶ 48.)
The State Division of Human Rights issued a Determination and Order after Investigation on October 20, 1997, finding that there was "insufficient evidence to support the Complainant's allegation of race and retaliation discrimination" and that "[t]he Respondent has articulated nondiscriminatory business reasons for its treatment respecting the Complainant's employment that [were] not shown by the Complainant to be pretextual." (Def's 56.1 Stmt. ¶ 49.)
On December 4, 1997, the United States Equal Employment Opportunity Commission issued a Determination stating that "the evidence obtained during the investigation does not establish violations of the statutes" and advised plaintiff of his right to commence this action within 90 days. (Def.'s 56.1 Stmt. ¶¶ 50-51.)
At a deposition on May 18, 1999, plaintiff testified about incidents that had occurred at Bellevue that he perceived as discriminatory. Plaintiff testified that, when plaintiff asked D'Amico for compensation for some out of title work, "in so many words I was called a piece of shit [by D'Amico] and I was told that I was not going to be compensated for shit, and if I keep this shit up I'll see what's going to happen to me because he knew all the tricks." (Def.'s 56.1 Stmt. ¶ 43.) Plaintiff also testified that Vezza frequently threatened his job, saying, "[y]ou keep this shit up and you'll see what's going to happen to you. We're going to get rid of you. We're going to fire you. (Def.'s 56.1 Stmt. ¶ 43.) He testified that Tichter took discriminatory actions against him by "making phony accusations of insubordination." (Def's 56.1 Stmt. ¶ 43.) Plaintiff also testified that, in one instance, Menna "referred to me not by name but he referred to me as boy because he was giving me a hard time and I was resist[ant] to it . . ." (Def.'s 56.1 Stmt. ¶ 55.) In addition, plaintiff testified at his deposition that he complained to Menna in 1992 that Paul Bocchino, a plumber in the plumbing shop, was making racial jokes and slurs. (Def's 56.1 Stmt. ¶ 62.) Finally, he testified that four other Bellevue employees, Arthur Probst, Ronald Wizniak, Edward Luszia, and Albert Wegner, also used racially offensive language. (Def.'s 56.1 Stmt. ¶ 63.)
Plaintiff filed his Amended Complaint in this Court on May 18, 1998. He brought claims against six defendants, HHC, D'Amico, Tichter, Menna, Vezza, and Foreman. Plaintiff's Amended Complaint comprised six causes of action: 1) a hostile work environment claim under 42 U.S.C. § 2000e-1 et seq. (hereinafter "Title VII"); 2) a disparate treatment claim under Title VII; 3) a retaliation claim under Title VII; 4) a claim for intentional infliction of emotional distress; 5) a claim that defendant HHC was negligent in hiring, supervising, and failing to fire the individual defendants; and 6) a claim against HHC under the theory of respondeat superior for actions "taken by the individual defendants, which served to deprive Ramsey of his constitutionally and statutorily guaranteed freedoms and rights." (Am. Compl. ¶ 103.)
Plaintiff's original Complaint was filed on March 4, 1998.
Defendants filed a motion to dismiss pursuant to Rules 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure on August 19, 1998. By consent of the parties, this Court granted defendants' motion in part on November 13, 1998, dismissing all claims against HHC "except those claims for acts of discrimination based on race and color and for acts of retaliation for opposing said discrimination which occurred on or after June 25, 1995" and dismissing all claims against defendants D'Amico, Tichter, Menna, Vezza, and Foreman. (Nov. 13, 1998 Order.) Three claims against HHC remain to be decided in this summary judgment motion: 1) the hostile work environment claim; 2) the disparate treatment claim; and 3) the retaliation claim. In deciding this motion, the Court will only consider acts of discrimination and retaliation that occurred on or after June 25, 1995.
Discussion
I. Standard for Summary Judgment
The Second Circuit has summarized the standard for granting summary judgment as follows:
First, 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). Second, the burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists. In considering that, third, all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Fourth, the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational [fact finder] could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and grant of summary judgment is proper.Gallo v. Prudential Residential Svcs., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted).
II. Hostile Work Environment Claim
A. Standard for Hostile Work Environment Claims
To establish a racially hostile work environment, plaintiff must show (1) "that his or her workplace was permeated with [instances of racially discriminatory conduct such as] `discriminatory intimidation, ridicule, and insult' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,'" Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)), (2) "that a specific basis exists for imputing the conduct that created the hostile environment to the employer," Murray v. New York University College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995); see also Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2d Cir. 1992), and (3) that the employer "failed to take reasonable steps to eliminate the harassment." Distasio, 157 F.3d at 65.
B. Application of Standard
1. Racially Discriminatory Conduct Creating an Abusive Work Environment
There is not enough evidence of racially discriminatory conduct within the statutory period to constitute a hostile work environment. The evidence of racially discriminatory conduct at Bellevue consists of plaintiff's deposition testimony that five employees used racially offensive language and that Menna once referred to plaintiff as "boy." (Def.'s 56.1 Stmt. ¶¶ 55, 62-63.) Though at least one of the employees about which plaintiff testified still worked at Bellevue in 1995, (Def.'s 56.1 Stmt. ¶ 64), plaintiff's testimony specifically related to events in 1992 and does not set forth any specific instances of the employees' use of racially offensive language after June 24, 1995. Plaintiff also does not assert that Menna's use of the term "boy" to refer to plaintiff occurred after June 24, 1995. However, even if Menna's statement did occur after June 24, 1995, that one statement would not be sufficient on its own to establish a hostile work environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)) (stating that a "`mere utterance of an . . . epithet which engenders offensive feelings in a employee,' . . . does not sufficiently affect the conditions of employment to implicate Title VII").
Because plaintiff has not presented enough evidence for a rational jury to find that he has satisfied the first element of a hostile work environment claim, summary judgment is granted as to this claim.
III. Disparate Treatment Claim
A. Standard for Disparate Treatment Claims
The standard for analyzing disparate treatment claims under Title VII was set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff has the burden of proving, by a preponderance of the evidence, a prima facie case of discrimination. 411 U.S. at 802. After plaintiff has established a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Finally, if the defendant meets this burden, the burden shifts back to the plaintiff "to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
B. Prima Facie Case of Disparate Treatment
There are four elements of a prima facie case of discrimination: plaintiff must show "[1.] membership in a protected class, [2.] qualification for the position, [3.] adverse employment action, and [4.] circumstances giving rise to an inference of discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Defendant does not dispute that plaintiff has satisfied the first two elements of a prima facie case.
membership in a protected class, qualification for the position, adverse employment action, and circumstances giving rise to an inference of discrimination.
1. Adverse Employment Decisions
For purposes of making out a prima facie case of discrimination under Title VII, an adverse employment decision is an "employer's action that alters the terms and conditions of employment in a negative way." Tarshis v. Riese Org., 2000 WL 502541 at 6 (2d Cir. (N.Y.) Apr. 26, 2000) (citing De la Cruz v. New York City Human Resources Administration Dept. of Soc. Svcs., 82 F.3d 16, 21 (2d Cir. 1996)). Plaintiff has made many claims of adverse employment decisions. Specifically, plaintiff pleads in his Amended Complaint that:
Title VII prohibits employers from discriminating "with respect to [an individual's] compensation, terms, conditions, or privileges of employment, because of such individual's race . . ." 42 U.S.C. § 2000e-2 (a)(1).
• He was denied overtime work (Am. Compl. ¶¶ 48, 53);
• Though all of the other maintenance workers were assigned to "an overhauled maintenance shop under a reorganization plan" in October 1995, Ramsey was instructed to continue working at the Old Bellevue campus (Am. Compl. ¶¶ 49-50);
Though plaintiff's initial assignment to the Old Bellevue Campus occurred in December 1991, before the statutory period for this action, his continued assignment to the Old Bellevue Campus in October 1995, when plaintiff claims all other maintenance workers were reassigned, may constitute an adverse employment action for purposes of plaintiff's disparate treatment claim.
• Plaintiff was assigned to the Mason Shop on or about December 11, 1995 but was not compensated for this out-of-title work (Am. Compl. ¶ 55);
• Though plaintiff was told on January 3, 1996 to change his locker location by January 9, he was locked out of the room in which his locker was located for a period of time on January 5 because Tichter and Menna had changed the locks (Am. Compl. ¶ 56);
• Medical attention for on-the-job injuries was delayed for plaintiff; specifically on January 5, 1996, but not for other workers (Am. Compl. ¶ 57);
• On January 25, 1996, following the injury to Vezza, plaintiff was suspended without pay by Tichter and Foreman without any charges being filed against him (Am. Compl. ¶ 59);
• During his suspension, plaintiff was removed from the "snow team," on which he had the possibility of earning extra income (Am. Compl. ¶ 60);
• Plaintiff was required to undergo a psychiatric evaluation (Am. Compl. ¶ 65);
• Plaintiff was taken from his regular time shift in May 1996 without justification and transferred to the engineering department, and his shift was again moved in August 1996, this time to the graveyard shift (Am. Compl. ¶¶ 66, 68; Declaration of Eric Seifert (hereinafter "Seifert Decl."), Ex. C, Pl. Dep. 133).
a. Claims Settled by the Stipulation of Settlement
Defendant argues that the claims of adverse employment actions alleged in the Amended Complaint cannot be considered because they were the subject of the Stipulation of Settlement of September 1997. (Def.'s Mem. in Supp. of S.J. at 23.) In the Stipulation, which was signed by plaintiff, defendant, and Local 237, plaintiff "withdr[ew], with prejudice, his Improper Practice Petition." (Weiss Decl. Ex. BB, ¶ 2.) The Stipulation stated:
Mr. Ramsey and the Union hereby release the Corporation and Bellevue from any and all claims, whether at law, in equity, or in any proceeding arising by virtue of the Corporation's Rules and Regulations, the collective bargaining agreement or any statute, which he and the Union may now have or which they may have had heretofore in connection with the claims arising out of the proceedings settled by this stipulation herein.
(Weiss Decl. Ex. BB, ¶ 11.) The Stipulation of Settlement also explicitly addresses plaintiff's claim regarding his out-of-title work in the Mason Shop, but does not mention any of the other claims in plaintiff's Amended Complaint. (Weiss Decl. Ex. BB, ¶ 9.)
In his Improper Practice Petition, plaintiff describes the nature of the controversy as follows:
(1) Maintenance worker performing "out of title" "mason's helper" duties from 11/11/95 — present without compensation for wage difference.
(2) Threats of disciplinary action: write-ups, suspension, transfer to another facility and termination for filing labor grievances and contacting Union Local #237 IB Teamsters.
(3) Enforced phony compensation case to justify 4 wk. suspension without pay. Management retaliation.
(Weiss Decl. Ex. AA.) He requests the following relief
Reimbursement for total wages lost:
(1) Maintenance worker wages 4 weeks = $2720.00.
(2) Snow detail "3" storms "96" = 58 hrs, at time + 1 half $25.50 rate = $1479.00.
(3) Out of title wage difference between "maint. worker" x 17.50 per hr.
(4) Complete retraction of charges entries to personnel file.
(5) No more retaliation.
(6) Restored to maintenance worker duties and snow team.
(Weiss Decl. Ex. AA.)
Though it appears that there may be some overlap between the claims in plaintiff's Improper Practice Petition and those in the Amended Complaint, the Stipulation of Settlement releases defendant from claims "arising out of the proceedings settled by this stipulation herein." (Weiss Decl. Ex. BB, ¶ 11 (emphasis added).) Neither party has submitted a transcript of the proceedings which led to the settlement nor any affidavit or other evidence of the content of those proceedings. Therefore, pending the submission of further evidence, only plaintiff's claims in this action relating to his out-of-title work in the Mason Shop will be dismissed as settled by the Stipulation of Settlement, because that claim was explicitly addressed in the Stipulation.
b. Denial of Overtime Work
Defendant contests plaintiff's claim that he suffered an adverse employment action by being denied overtime work. (Def's Mem. in Supp. of S.J. at 20.) Though denial of overtime work is the type of action by an employer that could constitute an adverse employment action, plaintiff has not presented sufficient evidence that he has been treated disparately in the distribution of overtime work. Plaintiff earned $35,496 in base salary in both 1995 and 1996, and earned $14,994 in overtime pay in 1995 and $9,907 in overtime pay in 1996. (Def.'s 56.1 Stmt. ¶ 58.) Defendant submits the only documentary evidence available which reflects that, among the maintenance workers, plaintiff earned the most overtime pay in 1995 and only one maintenance worker earned more overtime pay than plaintiff in 1996. (Weiss Decl., Ex. OO.)
In support of his claim that he was denied overtime work, plaintiff notes D'Amico's deposition testimony that "it was up to the shop supervisor to make sure that [overtime work] was distributed equally." (D'Amico Dep. 83, Seifert Decl., Ex. F.) Though plaintiff alludes in his Amended Complaint to times where he was denied requested overtime work so that it could be given to others, (see. e.g., Am. Compl. ¶ 54), after full discovery, he presents no specific evidence of disparate treatment in the assignment of overtime work.
Considering that there is evidence that plaintiff made more money from overtime work than most other maintenance workers, the fact that an overtime job may have on various occasions been taken away from plaintiff and given to another maintenance worker is not evidence of a discriminatory employment practice adverse to plaintiff for purposes of his disparate treatment claim. The evidence suggests that such an action would likely constitute an effort by a shop supervisor to distribute overtime work equally, as was the goal in the Maintenance Department according to D'Amico. Therefore, there is not enough evidence for a rational jury to hold that the denial of overtime work alleged by plaintiff constituted an adverse employment decision based on race.
c. The Locker Incident
Plaintiff also argues that his being locked out of his locker for a period of time on January 5, 1996 was an adverse employment action. Plaintiff testified at his deposition that he viewed the incident as part of the "discriminatory conduct" against him "[b]ecause it doesn't make sense for you to know that I have my belonging[s] in a particular place, give me a deadline to move my belongings, and then make the area inaccessible to me before the deadline." (Ramsey Dep. 127, Weiss Decl. Ex. C.) However, being locked out of his locker for part of one day does not alter "the terms and conditions of [plaintiff's] employment in a negative way." Tarshis v. Riese Org., 2000 WL 502541 at ¶ (2d Cir. 2000). Therefore, plaintiff has not presented evidence sufficient for a rational jury to find that his being locked out of his locker on January 5, 1996 constituted an adverse employment action.
Plaintiff was locked out of the room in which his locker was located for a short period of time on January 5, 1996 — he arranged for the hospital police to open the room as soon as he discovered that it was locked. (Pl.'s Dep. Tr. 127, Weiss Decl. Ex. D.)
d. Delay in Receiving Medical Treatment
At his deposition, plaintiff testified that Tichter delayed plaintiff's on-the-job medical treatment on January 5, 1996. Plaintiff testified:
I was working with a plasterer, . . ., but I had burned my forearm on a hot steam pipe while I was working with the plasterer and I went to the . . . maintenance office. . .to inform [Tichter] that I was injured on the job . . . [B]eing the head of the department, he could have sent me right to health service without any delay . . . He decided to rather waste time calling all over the hospital trying to get in touch with the mason foreman, Mr. Corseny, to have him fill out the accident papers that he could have filled out himself and then let me go on upstairs to health service. So he kept me standing there for the better part of 20 minutes while my forearm was blistering up with second degree burns.
(Ramsey Aff ¶ 15, Seifert DecI., Ex. B.)
Defendant submits uncontroverted evidence that plaintiff was treated for his injury 28 minutes after it occurred and 19 minutes after Tichter learned about the injury. (Weiss Decl. Ex. F.) No evidence has been presented that non-minority workers received quicker medical treatment under similar circumstances. On this evidence, no rational jury could find that such a brief delay in receiving medical treatment constitutes an adverse employment action.
For purposes of plaintiff's disparate treatment claim, the lack of compensation for plaintiff's out-of-title work in the Mason Shop, the denial of overtime work, the locker incident, and the delay in his receiving medical treatment on January 5, 1996 do not constitute adverse actions affecting the terms and conditions of plaintiff's employment. Pending submission of evidence of the proceedings in connection with the Stipulation of Settlement, the remaining actions alleged by plaintiff in his Amended Complaint, i.e. (1) plaintiff's continued assignment at the Old Bellevue Campus in 1995, (2) his four-week suspension, (3) his removal from the snow team, (4) the ordered psychiatric examination, and (5) his transfer to the engineering department, are considered adverse for purposes of his disparate treatment claim.
2. Inference of Discrimination
Defendant argues that the employment actions of which plaintiff complains did not occur under circumstances giving rise to an inference of discrimination. (Def.'s Mem. in Supp. of S.J. at 16.) However, plaintiff's burden in establishing a prima facie case of disparate treatment is "minimal." Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). The Supreme Court has explained that "the prima facie case `raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.'" Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981) (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)). A rational jury could find that plaintiff has met his minimal burden at this stage of the analysis.
C. Legitimate, Nondiscriminatory Reason
After plaintiff has made out a prima facie case, the burden shifts to the defendant to present a legitimate, nondiscriminatory reason for the adverse employment action. At this stage of the analysis, the defendant's "burden of production . . . is not a demanding one." Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir. 1999). "`[D]efendant need not persuade the court that it was actually motivated by the proffered reasons.'" Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir. 1997) (quoting Burdine, 450 U.S. at 254).
Defendant offers nondiscriminatory reasons for some of the adverse employment actions of which plaintiff complains. Defendant explains that plaintiff's four-week suspension on January 25, 1996 and the requirement that he undergo psychiatric evaluation were disciplinary actions arising out of an incident in which plaintiff allegedly hit Vezza with a hand truck. (Def.'s Mem. in Suppl. of S.J. at 17.) Defendant claims that plaintiff's transfer in May 1996 to the engineering department "was due to a reorganization of staffing needs . . ." (Def's Mem. in Supp. of S.J. at 18.) By offering these nondiscriminatory reasons for the adverse employment actions, defendant has met its burden regarding actions allegedly taken as part of disciplinary actions because of the hand truck incident and regarding plaintiff's transfer to the engineering department.
Though defendant does not specifically mention plaintiff's removal from the snow team, it is considered to be an action allegedly taken as a result of the hand truck incident because it was coterminous with plaintiff's suspension.
Because defendant does not present a legitimate reason for the continuation of plaintiff's assignment at Old Bellevue campus in October 1995 during the reorganization and reassignment of all other maintenance workers, (Am. Compl. ¶¶ 49-50), summary judgment is denied as to that adverse employment action.
D. Nondiscriminatory Reasons Are Pretextual
Because defendant has offered nondiscriminatory reasons for plaintiff's four-week suspension, his removal from the snow team, the ordered psychiatric examination, and his transfer to the engineering department, plaintiff has the burden of showing that the defendant's nondiscriminatory reasons are a pretext for disparate treatment.
1. The Hand Truck Incident
Plaintiff argues that Vezza's complaint that plaintiff hit him with a hand truck "was entirely motivated to orchestrate plaintiff's termination." (Pl.'s Mem. in Opp. to S.J. at 22.) However, it is not disputed that Vezza was injured in the hand truck incident and required medical treatment for that injury. No rational jury could conclude that Vezza deliberately caused injury to his hand to orchestrate plaintiff's termination. Plaintiff does not assert that the disciplinary officers were motivated by plaintiff's race to order plaintiff's four-week suspension, his removal from the snow team, and his psychiatric examination, or that those actions were a pretext for racial discrimination. There is no evidence that plaintiff was treated differently in these disciplinary actions than non-minority employees had been treated in similar situations. Since plaintiff does not suggest that the defendant was motivated by racial discrimination in suspending plaintiff for four weeks, removing him from the snow team, and ordering that he submit to a psychiatric examination, defendant's motion for summary judgment is granted on plaintiff's disparate treatment claim with respect to those actions.
2. Transfer to the Engineering Department
Plaintiff contends that the circumstances of his transfer to the engineering department suggest discrimination on the part of the defendant. In his deposition, plaintiff explained that the engineering department "was kind of the garbage can for the maintenance department." (Ramsey Dep. 133-34, Seifert Decl. Ex. C.) Plaintiff testified at his deposition that he remembered a total of four employees in the maintenance department, including himself, being transferred to the engineering department in May 1996. (Seifert Decl. Ex. C, Ramsey Dep. 135; Def.'s Mem. in Supp. of S.J. at 18.) According to plaintiff, three of those employees were African-American and one was Hispanic. (Ramsey Dep. 135-36, Seifert Decl. Ex. C.)
Plaintiff testified that one aspect of the engineering department that made it an undesirable position was the assignment of workers to "rotary shifts," which means that the shifts were not standard Monday to Friday 8:00 to 4:30 shifts, as in the other maintenance departments. (Ramsey Dep. 134, Seifert Decl. Ex. C.) Instead, maintenance workers in the engineering department might be assigned to work from 6:00 p.m. to 12:00 a.m. or from 12:00 a.m. to 8:00 a.m. (Ramsey Dep. 134, Seifert Decl. Ex. C.)
Because a rational jury could find that plaintiff was subjected to disparate treatment on account of his race in being transferred to the engineering department and that defendant's nondiscriminatory reason of "reorganization" was pretextual, summary judgment is denied as to that adverse employment action.
IV. Retaliation Claim
A. Standard for a Retaliation Claim
The analysis of retaliation claims is similar to the analysis set forth in McDonnell Douglas for discrimination claims. First plaintiff must make out a prima facie case of retaliation. Then defendant "has the burden of articulating a legitimate, non-retaliatory reason for the complained of action." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998). Finally, if defendant meets its burden, "plaintiff must adduce evidence "sufficient to raise a fact issue as to whether [the employer]'s reason was merely a pretext' for retaliation." Quinn, 159 F.3d at 769 (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1309 (2d Cir. 1995)).
B. Prima Facie Case
To make out a prima facie case of retaliation, a plaintiff must show:
[1.] that he engaged in protected participation or opposition under Title VII, [2.] that the employer was aware of this activity, [3.] that the employer took adverse action against the plaintiff, and [4.] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.Sumner v. United States Postal Service, 899 F.2d 203, 208-09 (2d Cir. 1990). In the context of a retaliation claim, "plaintiff need not prove the merit of his underlying discrimination complaint [to establish that his activity is protected under Title VII], but only that he was acting under a good faith, reasonable belief that a violation existed." Sumner, 899 F.2d at 209.
1. Participation in a Protected Activity
"The term `protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000). On October 18, 1995, plaintiff filed a complaint with the HHC EEO Office against Menna, Vezza, and D'Amico. A rational jury could find that plaintiff's EEO complaint constitutes a protected activity, even though it does not expressly mention discrimination, because it was filed with the office designated to deal with employees' complaints of "statutorily prohibited discrimination." Cruz, 202 F.3d at 566.
Plaintiff asserts that the grievances that he filed through the Bellevue grievance process are also protected activities. (Pl.'s Mem. in Opp. to S.J. at 26.) However, though informal complaints may be considered protected activities for purposes of a prima facie retaliation case, see Kotcher v. Rosa Sullivan Appliance Center, Inc., 957 F.2d 59, 65 (2d Cir. 1992), plaintiff does not give any indication in his grievances that the actions about which he complained were racially motivated. Therefore, his grievances are not protected activities for purposes of his retaliation claim.
2. Employer's Awareness of Protected Participation
At his deposition, plaintiff asserted that he knew that his supervisors knew about the complaint "[b]ecause a letter from Mr. McFarlane about a conversation that we had was supposed to be confidential was sent to the very people that I was complaining about." (Ramsey Dep. 59, Seifert Decl., Ex. C.) Plaintiff does not attach this letter to his papers opposing this motion, nor does he give any indication as to when the defendant received the letter. However, defendant explains that the letter to which plaintiff referred, a letter from McFarlane to plaintiff dated January 4, 1996, was received by the Bellevue Department of Labor Relations on January 5, 1996. (Def.'s Reply Mem. at 7; Weiss Decl. Ex. GG.)
3. Adverse Actions by Employer
Because the letter from McFarlane is the only evidence of defendant's knowledge of the EEO complaint, plaintiff's retaliation claim will be limited to acts of the defendant on or after January 5, 1996, namely the delay in medical treatment on January 5, 1996, the locker incident on January 5, 1996, plaintiff's four-week suspension beginning on January 5, 1996 and his removal from the snow team, the ordered psychiatric evaluation, and his transfer to the engineering department on May 9 1996.
The Second Circuit has noted that, in Title VII retaliation cases, "adverse employment action is not defined "solely in terms of job termination or reduced waged and benefits, and . . . less flagrant reprisals by employers may indeed be adverse." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). However, the court in Wanamaker also observed that ""not every unpleasant matter short of [discharge or demotion] creates a cause of action' for retaliatory discharge." 108 F.3d at 466 (quoting Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994)).
Neither the delay in plaintiff receiving medical treatment on January 5, 1996 nor the locker incident were adverse employment actions for purposes of his retaliation claim. Though plaintiff may have suffered some harm from these incidents, they constitute "unpleasant matter[s]" that do not rise to the level of adverse employment actions. Therefore, for plaintiff's retaliation claim, the only actions which will be considered are plaintiff's four-week suspension, plaintiff's removal from the snow team, the ordered psychiatric examination, and plaintiff's transfer to the engineering department.
4. Causal Connection Between Protected Activity and Adverse Action
"Proof of causal connection can be established 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." DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987) (internal citations omitted).
Defendant ordered plaintiff's suspension and psychiatric examination allegedly as a result of an incident on January 23, 1996, two weeks after defendant learned of plaintiff's complaint with the HHC EEO Office. This close temporal connection between the time when defendant learned of the complaint and the disciplinary action is sufficient for a rational jury to find that there was a causal connection between plaintiff's protected activity and the adverse actions taken after the hand truck incident. Plaintiff's transfer to the engineering department occurred four months after HHC learned of plaintiff's EEO complaint. However, in light of the history of antagonism between plaintiff and his supervisors throughout his employment at Bellevue and specifically after January 5, 1996, a rational jury could find a causal connection between his filing the EEO complaint and his transfer to the engineering department in May 1996.
C. Nondiscriminatory Reason and Pretext
As discussed above in connection with plaintiff's disparate treatment claim, there is no evidence suggesting that defendant's reason for plaintiff's four-week suspension, his removal from the snow team, and the ordered psychiatric examination was a pretext for racial discrimination. However, in light of the fact that these disciplinary actions occurred approximately three weeks after the defendant learned of plaintiff's EEO complaint, a rational jury could find that the actions were retaliatory in whole or in part. A rational jury could also find that defendant's proffered reason for plaintiff's transfer to the engineering department was a pretext for retaliation. Therefore, summary judgment is denied for plaintiff's retaliation claim as to his four-week suspension, his removal from the snow team, the ordered psychiatric examination, and his transfer to the engineering department in May 1996.
Conclusion
For plaintiff's disparate treatment claim, summary judgment is denied as to plaintiff's continued assignment at the Old Bellevue Campus and his transfer to the engineering department in May 1996. Summary judgment is denied for plaintiff's retaliation claim as to his transfer to the engineering department. Summary judgment is granted for the hostile work environment claim and for all other allegations in connection with the disparate treatment and retaliation claims. The parties are ordered to submit evidence of the claims settled by the Stipulation of Settlement by June 15, 2000. The pretrial order is due July 5, 2000, and a trial is scheduled for July 10, 2000.
IT IS SO ORDERED.