Summary
deciding to conduct a search of the record, despite the fact that plaintiff's Rule 56.1 statement "effectively ignored many of defendant's assertions by offering in response either non-responsive citations to the record or wholesale references to entire depositions without any particularization of the paragraphs he regarded as responsive."
Summary of this case from Ramos v. Simon-Ro Corp.Opinion
No. 04 Civ. 2880 (JSR).
March 14, 2005
MEMORANDUM ORDER
By Order dated January 12, 2005, the Court denied plaintiff's motion to amend his Complaint. By Order dated February 4, 2005, the Court granted summary judgment to defendant. By Order dated February 13, 2005, the Court denied plaintiff's motion under Rule 56(f), Fed.R.Civ.P., seeking additional discovery in connection with the summary judgment motion. This Memorandum Order will briefly set forth the reasons for these determinations, dispose of plaintiff's motion for reconsideration of the Order of February 13, 2005, and direct the entry of final judgment.
1. The Motion to Amend. Plaintiff's original Complaint was filed on April 14, 2004, and alleged two counts of unlawful retaliation and one count of hostile work environment. See Complaint at ¶¶ 4-31. Although the Court denied plaintiff's separate application for injunctive relief, see Order dated July 29, 2004, it acceded to plaintiff's request that the matter be moved rapidly to trial. See transcript, July 29, 2004. As a result, after discovery was completed, the Court set a trial date of February 14, 2005, subject only to resolution of defendant's putative motion for summary judgment. See transcript, November 22, 2004.
It now appears that plaintiff's counsel may have filed the Complaint before receiving a "Right to Sue" letter from the EEOC, a fact made known to the Court only when, having belatedly received the Right to Sue Letter on December 14, 2004, plaintiff's counsel annexed it to his motion to amend the Complaint filed on December 20, 2004. In similar disregard of jurisdictional prerequisites, plaintiff's counsel, even while moving for reconsideration of the Court's Order of February 13, 2005, has already filed with the Court of Appeals a purported notice of appeal from that Order, from the Orders of January 12, 2005 and February 4, 2005, and from various, earlier orders in this case, even though final judgment has not yet been entered in the case. See Notice of Appeal, February 28, 2005.
Nonetheless, after defendant's motion papers for summary judgment had been served, plaintiff moved, on December 20, 2004, to amend his Complaint to add a second hostile work environment claim and a claim of wrongful termination. Plaintiff himself recognized that these new claims would entail still further discovery, for he labeled his motion "Plaintiff's Motion to Amend and for Discovery." To have permitted plaintiff to so proceed after discovery had been closed, summary judgment motion practice was proceeding, and trial was imminent would have been highly prejudicial to defendant, totally disruptive to the Court's calendar, and contrary even to plaintiff's own prior request for a speedy trial. Accordingly, by Order dated January 12, 2005, the Court denied plaintiff's motion to amend. See, e.g., Krumme v. WestPoint Stevens, Inc., 143 F.3d 71, 88 (2d Cir. 1998). 2. The Motion for Summary Judgment. In the first two counts of his Complaint, as fleshed out by discovery, plaintiff asserts that he suffered, by way of retaliation, seven adverse employment actions: (1) in 2002 and 2003, he was denied a technical training course, see Deposition of Dan Shah, September 29, 2004 ("Shah Dep.") at 69-72, 120; (2) in August, 2002, he was denied a mentor, see id. at 93-95; (3) in April, 2003, he did not receive a pay raise, see Affidavit of George Christ ("Christ Aff.") at ¶¶ 6, 7, 16; (4) in May, 2003, he was demoted from a "band 3L" position to a "band 2H" position, though his salary did not decrease as a result, see Deposition of Loretta Vanacore, date not indicated ("Vanacore Dep.") at 64; (5) in May or June 2003, he was denied a EHS manager's position at the 74th Street Generating Station, see Shah Dep. at 46-47; (6) in April, 2004, he received a Performance Improvement Notification, ("P.I.N."),see 2004 Performance Review of Dan Shah attached to Certification of Stephen T. Mitchell, January 7, 2005, as Exhibit M, at 2; and (7) in April, 2004, as a result of being placed on P.I.N. status, he once again did not receive a pay raise, see Deposition of Walter Stepien, date not indicated ("Stepien Dep.") at 41, 45
In its moving papers on summary judgment, defendant adduced substantial admissible evidence that these actions were the product of lawful conduct. See (by way of summary), defendant's Rule 56.1 statement at ¶¶ 27, 29-38, 50-54, 60-70. The burden therefore was upon plaintiff to adduce admissible evidence from which a reasonable juror could infer that at least one real reason for these actions was retaliation. See generally Fisher v. Vassar College, 114 F.3d 332, 345 (2d Cir. 1998) (en banc); see also Tongalson v. Dreyfus Service Corp., 04 Civ. 2308, 2005 U.S. Dist. LEXIS 2141, at *19-*20 (S.D.N.Y. Feb. 14, 2005). In his answering papers, however, plaintiff wholly failed to carry this burden. His Rule 56.1 statement effectively ignored many of defendant's assertions by offering in response either non-responsive citations to the record or wholesale references to entire depositions without any particularization of the paragraphs he regarded as responsive. On the basis of a comparison of the parties' Rule 56.1 statements alone, the Court would be justified in granting summary judgment to defendant on the retaliation counts.
Instead, however, the Court has undertaken to search the record, at least to the extent it has been provided by the parties in the exhibits to their summary judgment papers. But, having done so, the Court is unable to discern any basis on which a reasonable juror could infer that plaintiff was the victim of retaliation in any respect.
The most obvious flaw is plaintiff's failure to show causality, an essential element of any retaliation claim. See DeCinto v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987). The first protected activity that plaintiff claims provoked retaliation was his reporting to defendant's internal "EEO" officer in June, 2000 his witnessing of alleged racially discriminatory conduct against a fellow employee, David Perez. But it is undisputed that the reporting was made by means of an anonymous complaint. See Shah Dep. at 28, 53-59. There is no suggestion that anyone knew who had filed the anonymous complaint until Shah himself revealed his authorship shortly before or while testifying at a deposition in late September, 2003. Accordingly, the filing of the anonymous complaint could not possibly have provoked the first five of the seven adverse actions listed above, all five of which occurred before September, 2003.
The other protected action that Shah contends provoked retaliation was the aforementioned deposition testimony itself, which he gave in connection with a legal action brought by Perez against defendant. Since, as noted, this deposition occurred in September, 2003, the only adverse actions it could possibly have provoked were Shah's being placed on P.I.N. status in April, 2004 and the concomitant denial of a pay raise (i.e., the last two of the seven adverse actions listed above).
As to the former, simply being notified that your performance must improve does not of itself constitute an adverse employment action cognizable under the federal anti-discrimination laws.See Weeks v. N.Y.S. (Div. of Parole), 273 F.3d 76, 83 (2d Cir. 2001). It is true that being on P.I.N. status also meant that Shah would once again not get a pay raise. But both actions were simply the continuation of assessments of Shah's works that indisputably trace back to long before his deposition. Thus, a year earlier, Shah's supervisors had already expressed doubts about his performance and decided not to give him a pay raise.See Christ Aff. at 6, 7, 16; 2003 Performance Review of Dan Shah attached to Certification of Jeanmarie Schieler, December 21, 2005, as Exhibit B. The review in 2004 simply reiterated Shah's 2003 problems.
Against this, Shah offers no more than the argument that because he testified adversely to his employer in the deposition in late September, 2003, a reasonable juror could infer that part of the reason he was denied a pay raise in April, 2004 was retaliation. But given that, based on a similar assessment of his performance deficiencies, his employer had previously denied him a raise before the deposition was given, such an inference would rest on nothing more than the grossest speculation. Moreover, the gap of more than six months between when Shah gave his deposition and when the decision was made not to give him a pay increase in 2004, see Shah Dep. at 73, 126; Christ Aff. ¶¶ 6, 7, 22, is far too long to support in itself an inference of discrimination.See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (temporal proximity must be "very close");Hussein v. Hotel Employees Restaurant Union, Local 6, 108 F. Supp. 2d 360, 367 (S.D.N.Y. 2000) ("the passage of more than two months defeats any retaliatory nexus"); Ponticelli v. Zurich American Ins. Group, 16 F. Supp. 2d 414, 436 (S.D.N.Y. 1998) (two-and-a-half months between protected activity and discipline "is hardly the close proximity of time" necessary to establish a causal link). The two retaliation claims here alleged must therefore be dismissed.
As to his other cause of action, alleging a hostile work environment, plaintiff claims in the Complaint that "he has been forced to work in a racially hostile work environment on a continuous basis since at least January 2000." Complaint ¶ 26. But on the instant motion, plaintiff has wholly failed to adduce admissible evidence of this claim. Indeed, the only competent and relevant evidence he now presents regarding this claim consists of his testimony that he witnessed three occasions when Mr. Perez was referred to, respectively, as a "cockroach," "boy," and "ponytail," see Shah Dep. at 24, 25, 41, and his overhearing a lower level executive say something to the effect that "hey, look white man owns the world" or "white man rules the world," see id. at 24. This falls woefully short of the level of evidence that would warrant any reasonable juror in inferring the kind of hostile climate necessary to support plaintiff's legal claim.See Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002);Torres v. Pisano, 116 F.3d 625, 630-31 (2d Cir. 1997), cert. denied, 522 U.S. 997 (1998). Accordingly, plaintiff's hostile work environment claim, like his retaliation claims, must be dismissed.
3. The Rule 56(f) Motion and the Motion for Reconsideration. The official docket sheet of this case reveals that on February 8, 2005, plaintiff filed a motion under Rule 56(f), Fed.R.Civ.P., seeking additional discovery on his summary judgment motion. Well before February 8, 2005, the Court had already issued, and faxed to counsel, its Order dated February 4, 2005, granting defendant's motion for summary judgment. Accordingly, the Court, by Order dated February 13, 2004, denied plaintiff's Rule 56(f) motion as both untimely and moot.
Plaintiff now moves for reconsideration of that ruling, alleging, in an affidavit from one of plaintiff's counsel's associates, that she attempted to file the motion on January 25, 2005, and believed she had done so. Rather than resolve this discrepancy, the Court has now undertaken to reconsider the Rule 56(f) motion de novo and on the merits. But, having done so, the Court is still obliged to deny the motion, as the discovery sought in the Rule 56(f) motion is entirely irrelevant to the issues before the Court on defendant's summary judgment motion. Accordingly, both the Rule 56(f) motion and the motion for reconsideration are denied.
In sum, since the Court has granted summary judgment to defendant and disposed of all other pending motions, the Clerk of the Court is hereby directed to enter final judgment dismissing the Complaint with prejudice.
SO ORDERED.