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concluding temporal proximity was not enough to support causal connection at summary judgment stage for “ close temporal proximity will almost always occur in failure-to-hire cases” (quoting Kelley , 220 F.3d at 1179 )
Summary of this case from Chuan Wang v. PalmisanoOpinion
No. 01 Civ. 9288 (CBM)
December 9, 2002
For Plaintiff: Michael R. Bressler, New York, N.Y.
For Defendant Manhattan Worker Career Center: Andrew S. Fisher, Judith Held, Fisher Fisher, New York, N.Y.
For Defendant Career Blazers Learning Center, Inc.: Adrienne B. Koch, Esanu, Katsky, Korins Siger, New York, N.Y.
MEMORANDUM OPINION ORDER
INTRODUCTION
Plaintiff Felix Alvarado brings an action alleging discrimination on the basis of race and gender and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq.; 42 U.S.C. § 1981; the New York State Human Rights Laws; and the New York City Human Rights Laws. Defendants Manhattan Worker Career Center ("WCC") and Career Blazers Learning Center ("CBLC") now move this court for an Order pursuant to Fed.R.Civ.P. 56(b) granting summary judgment dismissing the amended complaint (the "complaint") in its entirety. For the reasons discussed below, the defendants' separate motions for summary judgment are hereby GRANTED.
BACKGROUND
Defendants CBLC and WCCCBLC is an adult educational facility which provides training courses in areas such as information technology, computer applications and office administration. Presumably, individuals enroll as students at CBLC pursuant to various employment-related goals, including, inter alia, an interest in furthering prospects to secure employment, to improve performance at existing jobs, and to qualify for promotions. CBLC seeks, through the dissemination of what is commonly known as job training, to enable its student-clientele to enter the job market with sufficient knowledge and skills to secure and/or successfully discharge the duties which inhere in a given employment opportunity. While CBLC is predominantly an educational facility, it also provides, as an adjunct service, employment-procurement services to currently enrolled and former students. CBLC thus asserts that it is a school and not an "employment agency" pursuant to 42 U.S.C. § 2000e-2(b). See discussion infra.
WCC is operated by the Consortium for Worker Education under a contract with the New York City Department of Employment (the "Department"), using funds made available to the City through the Workforce Investment Act ("WIA"), 29 U.S.C. § 2801 et seq., the successor to the Job Training Partnership Act ("JTPA"), 29 U.S.C. § 1501 et seq. WCC provides its clients with a range of services, which include workshops on employment preparation, case management, direct job placement assistance, and access to a variety of job placement resources. WCC does not dispute that it qualifies as an "employment agency" pursuant to 42 U.S.C. § 2000e-2(b).
The JPTA was repealed effective July 1, 2000.
If an eligible customer of WCC is unable to obtain re-employment through the Center's standard employment search protocol, she may be referred to a skill-training program funded directly by the Department. According to WCC's motion papers, if "training is indicated but there is no appropriate [Department-] funded provider, the customer may initiate an application for tuition assistance at schools registered on the WIA State approved list." WCC Mem. of Law at 3. If an applicant is approved, WCC issues the eligible customer a voucher which permits her to register in the approved course. After taking the course, the customer, hopefully endowed with enhanced job-related skills and/or knowledge, returns to WCC for "placement assistance and follow-up." Id. Although WCC makes job referrals on behalf of its customers, it underscores that it has no control over whether a WCC customer will be accepted or rejected for training programs or job opportunities.
Plaintiff's History with WCC and the NYSDHR Complaint
Plaintiff enrolled at WCC four times. Plaintiffs files from the first two enrollments, which were initiated on October 22, 1996 and January 27, 1998, were terminated because of his lack of activity. After he reapplied for enrollment on September 9, 1998, WCC sent plaintiff for an interview with one of its employer accounts, Gainor Temporaries, Inc. ("Gainor"). Through Gainor, plaintiff obtained employment as a duplicating clerk at the law firm of Phillips, Nizer Benjamin Krim Ballon ("Phillips Nizer"), where he commenced employment on September 24, 1998. Plaintiff subsequently complained both to the law firm and to Gainor that one of his Hispanic co-workers was receiving preferential treatment from his boss. On December 7, 1998, plaintiff was terminated from his position at the firm.
On December 8, 1998, one day after Phillips Nizer terminated his employment with the firm, plaintiff filed a discrimination complaint against Phillips Nizer and Gainor with the New York State Department of Human Rights ("NYSDHR"). Remarkably, in that complaint, plaintiff (a Hispanic male) claimed that he was discriminated against by his supervisor (also a Hispanic male), who allegedly favored another co-worker (also a Hispanic male) over plaintiff. Plaintiff alleged that when he complained to his supervisor about this favoritism, his co-worker, Mr. Ramirez, became threatening and verbally abusive. Mr. Alvarado claimed that when he reported this altercation to another superior, his employer asked the temporary agency through which it had hired him — Gainor — to reassign plaintiff elsewhere. Gainor offered plaintiff another placement at a higher salary, but he refused, claiming that he was not physically capable of performing the work. Based on these alleged facts, plaintiff asserted that he had been discriminated against — and the court hastens to repeat, by a Hispanic male supervisor who gave preferential treatment to a Hispanic male co-worker — because of his Hispanic ethnicity and male gender. He moreover claimed that Phillips Nizer retaliated against him for complaining about the alleged discrimination. After investigation, the NYSDHR dismissed plaintiffs complaint on the merits for want of probable cause, observing that "the evidence does not suggest that Mr. Alvarado's race or gender had anything to do" with his treatment at Phillips Nizer. The Supreme Court, New York County, upheld the dismissal.
Plaintiff amended his complaint to the NYSDHR three times. He replaced his initial claim that he had been discriminated against because of his national origin with the claim that he had been discriminated against on the basis of his race and sex.
Plaintiff's Claims in Federal Court
Although CBLC's students generally pay for its services, CBLC participates in certain government-funded programs which provide training at no or little cost to enrolling students. From January 1, 1999 to December 31, 1999, the CBLC participated in a program which was funded through the JTPA.
CBLC participated in the JTPA program pursuant to a contract with the Department. Under this contract, CBLC agreed to provide certain classroom training and related services to eligible individuals referred to CBLC by WCC. Funding for the program was provided by the Department; individuals who were accepted thus received services free of charge.
In January 1999, after being properly referred by WCC, plaintiff applied to take a JTPA-funded course at CBLC. Mr. Alvarado did not apply for regular admission to CBLC as a student; rather, he only applied for one of the limited spaces in the JTPA-funded Computer Support/Systems Analyst program. There were more applications for the program than available spaces, however, and plaintiff was not selected for the program.
Thereafter, plaintiff filed complaints with the Department, which was designated under the relevant JTPA regulation as the body which hears complaints concerning unfair or improper treatment of applicants by JPTA contractors such as CBLC. Plaintiff claimed that CBLC, WCC, and others no longer involved in this action retaliated against him because he had filed a discrimination claim with the NYSDHR against Phillips Nizer and Gainor. Although plaintiffs retaliation complaint was not timely filed, the Department charitably considered it, concluding that his allegations were unfounded noting, inter cilia, that plaintiff was "afforded several opportunities to present what [plaintiff] described as evidence to support the claim of retaliation. At each opportunity, [plaintiff] failed to present any tangible evidence." See Dept. Resp. Letter. The Department dismissed plaintiffs complaint and informed him of his right to appeal its decision to the New York State Department of Labor. Plaintiff did not file an appeal.
Chinatown Manpower Project, Inc. and William Funk are no longer defendants in this action.
Not to be discouraged, plaintiff took his claims to another forum, next filing a complaint with the NYSDHR against CBLC, WCC and other parties not involved in this action. The complaint was comprised of the same allegations as the complaint filed with the Department. After investigation, the NYSDHR dismissed the complaint on the merits, finding that plaintiff had failed to establish probable cause to believe that unlawful conduct had occurred. Whereas the complaint was filed under the EEOC's dual-filing system, the dismissal resulted in the issuance of a right-to-sue letter. Plaintiff dutifully exercised that right, leading to the litigation which is currently before the court.
See n. 2 supra.
Plaintiff's Claims Before This Court
The amended complaint essentially repeats the allegations Mr. Alvarado unsuccessfully pursued before the Department and the NYSDHR. The complaint, which is only four pages long, alleges that when he enrolled at WCC after being fired by Phillips Nizer, plaintiff informed Conrad Sharpe, the agent assigned to his file, of his NYSDHR discrimination complaint against Phillips Nizer and Gainor. Thereafter, plaintiff alleges, Mr. Sharpe began to ignore him. Plaintiff claims that Mr. Sharpe did not return his phone calls and "did nothing to provide employment to plaintiff nor [sic] training that he requested. All in retaliation for his filing a complaint of discrimination [against Phillips Nizer and Gainor]." Am. Complt., ¶ 9.
According to the complaint, plaintiff applied for the selective JPTA-funded program after being properly referred by WCC. Plaintiff claims that when he informed the CBLC interviewer of his discrimination complaint against Phillips Nizer and Gainor, "the interview became awkward." Id. ¶ 11. Plaintiff alleges that WCC may have given unspecified "negative information" about plaintiff to CBLC. Plaintiff offers no evidence to support this allegation. He further asserts that he was fully qualified for admission to CBLC's JPTA-funded training program. Accordingly, he concludes that only retaliatory and discriminatory action on the part of defendants could have led to the rejection of his application.
Plaintiff's complaint is comprised of four separate causes of action. First, plaintiff asserts a cause of action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs Title VII claim is predicated upon the allegation that both defendants CBLC and WCC qualify as "employment agencies" whose conduct is governed by the statute. Defendant CBLC contests this designation. Plaintiffs second cause of action claims that defendants violated 42 U.S.C. § 1981, which prohibits discrimination on the basis of race in making and enforcing contracts. The third cause of action claims that defendants violated his rights under the New York State Human Rights Law ("SHRL"). The fourth cause of action claims that defendants violated plaintiffs rights under the New York City Human Rights Law ("CHRL").
Mr. Alvarado seeks injunctive relief, back pay, compensatory damages, punitive damages, attorney's fees, any other equitable relief that the court deems just and proper, and statutory damages under New York City and New York State law.
Discovery Dispute
There was an extended discovery dispute in this case, the ultimate resolution of which affects the posture of the litigation as it is now before the court. While my disposition of the motions for summary judgment does not require a recitation of the facts of the dispute, the court will address these facts for at least three reasons. First, such a discussion shall explain why the court, at the close of its October 8, 2002 hearing on defendants' application pursuant to Fed.R.Civ.Pro. Rule 37, precluded evidence of emotional damages from the plaintiffs case. Second, it shall explain why the court allowed defendants to move for summary judgment before they had deposed plaintiff and thus concluded all discovery which had initially been requested. Finally, whereas I issued a brief, handwritten Order at the close of the hearing on defendants' Rule 37 application, it is appropriate to provide now, for the public record, robust explanations for the October 8, 2002 preclusion Order, the November 13, 2002 Order denying plaintiffs request to extend the deadline for filing his memorandum in opposition to defendants' motions for summary judgment, and the court's disposition of defendants' request that sanctions be imposed against plaintiff pursuant to Rule 37.
After a lengthy discovery dispute which took four months to resolve, plaintiff decided not to take even one deposition in this case.
On July 1, 2002, Ms. Adrienne Koch, counsel for CBLC, contacted the court to report that a discovery dispute had arisen among the parties. Ms. Koch stated that she had contacted Michael R. Bressler, counsel for the plaintiff, pursuant to this court's May 16, 2002 discovery Order, attempting to effectuate the production of relevant documents and set a deposition schedule. Plaintiff did not respond to Ms. Koch's letters and did not produce any documents on or before June 7, 2002, the deadline specified in the discovery Order. While certain documents were eventually delivered to defendant, they arrived after the June 7 deadline set by this court. In its letter to the court, CBLC noted, inter cilia, that certain cassette tapes which had been delivered to defendants pursuant to the discovery Order had been edited by plaintiff and, in some instances, required translation from Spanish to English. Counsel for CBLC described numerous failed attempts to contact counsel for plaintiff to schedule depositions. Ms. Koch urged the court to conclude that plaintiffs dilatory tactics had prevented the parties from agreeing to a deposition schedule by the July 5, 2002 deadline established in the May 16 discovery Order.
The court is convinced that defendants made a good faith effort to abide by the court's initial Order and agree to a deposition schedule by July 5. Plaintiff thwarted these efforts by failing to reply to their repeated requests to come to such an agreement. Plaintiffs irresponsible behavior thus generated the ensuing discovery dispute, leading to three subsequent pretrial conferences — two held by Magistrate Judge James C. Francis, the last held by this court — through which the defendants endeavored to force Mr. Bressler and his client to comply with orders of the court and move along with the case.
Pursuant to defendants' initial request that the court intervene to resolve the discovery dispute, on July 22, 2002, Magistrate Judge Francis held a conference to address the matter. Judge Francis issued an order which, inter cilia, directed plaintiff to produce an English translation of certain audiotapes; to produce originals of said tapes; to contact plaintiffs psychologist to ensure that all relevant notes and charts were forwarded to defendants' counsel; and to identify all deposition witnesses by July 26, 2002.
At this conference, a sexual harassment claim (if one ever existed in the complaint) against William Funk was dismissed with prejudice and without costs. Mr. Funk is thus no longer a party to this action.
On August 2, 2002, defendants again contacted the court to complain of plaintiffs "gross non-compliance" with his discovery obligations. In particular, defendants noted that on July 30, 2002 — one day before the July 31 deadline for completion of depositions initially scheduled by this court, and four days after the July 26 deadline for identification of deposition witnesses that Judge Francis set in his July 22 Order — plaintiffs counsel announced that he wished to take five depositions, including depositions of three current or former CBLC employees whom he had not previously indicated that he wished to depose. This clearly violated the July 26, 2002 deadline for identifying deposition witnesses provided in Judge Francis's July 22 Order. Pursuant to defendant's second request for the court's intervention, the matter was again referred to Judge Francis.
After a second conference addressing the unresolved discovery dispute, Judge Francis issued an Order which stated that failure to produce certain documents identified therein by dates certain announced therein would result in the preclusion of that evidence from being used at trial. Inter cilia, Judge Francis ordered that (1) by August 6, 2002, plaintiff was to provide defendants with the original microcassettes of all recorded conversations, failing which he would be precluded from utilizing them in this case; (2) by August 9, 2002, plaintiff was to provide defendants with a certified English translation of the taped conversation that is in Spanish, failing which he would be precluded from utilizing said evidence in this case; (3) by August 9, 2002, plaintiff was to produce "all treatment records" from his treating psychologist, who was to be deposed by August 31, 2002, failing which the plaintiff would be precluded from introducing any evidence of mental distress. Finally, (4) by August 31, 2002, counsel were to complete the depositions of plaintiff, Iris Rivera, and Maria Alvarez.
Whereas the parties had previously disputed whether the materials provided by plaintiff constituted "all treatment records," Judge Francis, in his July 22 Order, ordered plaintiffs counsel to contact plaintiffs psychologist to ensure that all notes and charts were produced.
In a letter dated September 9, 2002, counsel for CBLC complained that plaintiff did not comply with Judge Francis's second Order. In particular, defendants claimed that on August 9, 2002, plaintiffs counsel faxed defendants several handwritten pages, presumably constituting notes taken by plaintiffs psychologist. CBLC asserted that these pages did not constitute the complete file of "all treatment records" which Judge Francis's Order directed plaintiff to produce. Indeed, they did not include diagnoses, billing statements which might include diagnostic codes, or any patient or family history. Whereas it appeared that plaintiff had again flouted a judicial order, defendants sought to determine whether any evidence could be precluded pursuant to Judge Francis's August 5 Order. In addition, defendants claimed that plaintiff flouted Judge Francis's Order by producing copies, rather than "the original microcassettes" directed to be delivered pursuant to the order. Moreover, CBLC claimed that Mr. Bressler had verbally agreed that the tapes were no longer at issue. Mr. Bressler denied this. Finally, defendants claimed that plaintiffs counsel had verbally informed them that on August 20, 2002, he would request an extension of the deadline for plaintiff to produce his client and his client's psychologist for deposition. In addition, he agreed that he would not be taking any depositions. The court never received such a request from plaintiffs counsel. The August 31 deposition deadline set in the August 5 Order came and went; plaintiff failed to contact either the court or counsel for the defendants to schedule depositions, request an extension or offer reasons for his delay.
In particular, defendants wished to know whether plaintiffs failure to produce what defendants considered to be "all treatment records" and failure to depose plaintiffs psychologist by the court-ordered deadline precluded plaintiff from introducing any evidence of emotional distress, pursuant to Judge Francis's August 5 Order.
In light of the foregoing, defendants moved the court, pursuant to Fed.R.Civ.Pro. Rule 37, to either (1) dismiss the case; or (2) direct that as a condition to proceeding with the case, plaintiff must pay the costs and attorneys' fees incurred by defendants in connection with their attempts (by letters and phone calls to counsel and application to this court) to induce plaintiff to comply with his discovery obligations. On October 8, 2002, the court held a hearing pursuant to defendants' Rule 37 application.
Rule 37 Hearing and Order
Rule 37 sets forth the court's procedures for enforcing discovery and sanctioning misconduct. "If a party fails to make a disclosure required by Rule 26(a), any party may move to compel disclosure and for appropriate sanctions" which include an award of reasonable expenses for bringing the motion. Fed.R.Civ.Pro. Rule 37(a)(1) (4)(A). The Second Circuit has made it abundantly clear that Rule 37 empowers the district courts with broad discretion to impose sanctions of sufficient severity to deter misconduct during discovery. Rulings under Rule 37 are reviewed under an abuse of discretion standard. It does not appear to be necessary to make a formal motion pursuant to Rule 37. See Gilpin v. Philip Morris International, Inc., 2002 WL 1461433 (S.D.N.Y.) ("Although defendants have not made a formal motion, the court treats their . . . requests for dismissal as the equivalent"). The letter submitted by defendants in the instant case, styled as an "application" for sanctions or dismissal pursuant to Rule 37, is thus sufficient.
Dismissal is the "harshest sanction available to a district court, and thus should 'be imposed only in extreme circumstances.'" Id. at 3 (quoting Jones v. Niagra Frontier Transp. Auth., 836 F.2d 731, 734-35 (2d Cir. 1987)). Moreover, "[t]he sanction of dismissal should not be imposed under Rule 37 unless the failure to comply with a pretrial production order is due to 'willfulness, bad faith, or any fault' of the deponent." Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986) (quoting Societe Internationale Pour Participations Industrielles et Commerciales v. Rogers, 357 U.S. 197, 212 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958)). Judge Marrero has observed that dismissal is appropriate "'only where the noncompliance is due to willfulness, bad faith, fault or gross negligence rather than inability to comply or mere oversight.'" Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002) (quoting Hochberg v. Howlett, 1994 WL 174337, *3 (S.D.N.Y. 1994)). In Gilpin, Judge Carter explained that "[f]ailure to comply is considered willful when 'the court's orders have been clear, when the party has understood them, and when the party's non-compliance is not due to factors beyond the party's control.'" Id. at 3 (quoting Baba v. Japan Travel Bureau Int'l, 165 F.R.D. 398, 402-03 (S.D.N.Y. 1996) (Sotomayor, J.)).
It is apparent that plaintiffs failure to comply with provisions of three Orders was both willful and that plaintiff and/or his attorney acted in bad faith. Plaintiff claims that he could not abide by certain provisions of the orders because, e.g., obtaining translations of the tapes was financially prohibitive. Plaintiff failed to bring this to the court's attention until after he had flouted the order. He offers no explanation for the other delays complained of by defendants, except to argue that he could not force plaintiffs psychologist to be available for a deposition. Nonetheless, the court notes that "[i]t is incumbent on the court to ensure that the disobedient party had notice that its conduct risked dismissal and had an opportunity to be heard." Nieves at 535 (citing Spring Valley Water v. Cosco Industries, 1998 WL 466110, *2 (S.D.N.Y. Aug. 10, 1998) (citing Rule 37(a)(4) and Magrino v. NYC Off-TrackBetting Corp., 1994 WL 4446, *2 (S.D.N.Y. Jan. 3, 1994). No such notice was given by Magistrate Judge Francis in this case.
In light of the absence of clear notice, the court did not dismiss the case. At the close of the October 8, 2002 hearing on defendants' Rule 37 application, the court ordered that Magistrate Judge Francis's August 5, 2002 Order be enforced. Accordingly, evidence of emotional distress was precluded. The court deferred ruling on defendants' request for fees incurred due to plaintiffs dilatory conduct. At the hearing, plaintiff agreed to withdraw the audiotapes from the case. With this evidence and evidence of emotional damages out, and in light of plaintiffs decision not to conduct any depositions, defendants asked the court for leave to file motions for summary judgment. The court granted defendants' motion.
In Nieves, Judge Marrero notes that "[n]umerous factors are relevant to a district court's exercise of its broad discretion to order sanctions under Rule 37, including (1) the wilfulness of the non-compliant party or the reason for the noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of non-compliance; and (4) whether the non-compliant party had been warned of the consequences of his non-compliance." (citing Bambu Sales, Inc., v. Ozak Trading, Inc., 58 F.3d 849, 852-54 (2d Cir. 1995). In the instant case, the Order of this court noted that sanctions would be imposed in the event of non-compliance. An award of sanctions under Rule 37 should effectuate its three purposes: (1) obtaining compliance with discovery orders; (2) ensuring the disobedient party does not benefit from non-compliance; and (3) providing a general deterrent in the particular case and litigation in general. See Nieves at 535 (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); International Mining Co., Inc. v. Allen Co., Inc., 567 F. Supp. 777, 788 (S.D.N.Y. 1983); Baker v. Ace Advertisers' Service, Inc., 153 F.R.D. 38, 40 (S.D.N.Y. 1992) (dismissing complaint for willful and bad faith violations of Magistrate Judge's Orders)).
The court is convinced that this is an appropriate case for imposition of sanctions. The record shows that plaintiffs behavior was willful. He variously offered no or disingenuous explanations for his failure to comply with numerous orders of this court. Over the course of four months, plaintiff and his attorney have selfishly wasted the time and depleted the resources of counsel for defendants and two judges of this court and their staffs. Plaintiff repeatedly ignored clear, comprehensible and reasonable orders of this court. Indeed, plaintiffs failure to timely oppose defendants summary judgment motion, see discussion infra, suggests that even after three hearings and four orders, he still fails to respect this court or the professional obligations of the other parties to this litigation. A hollow warning of the imposition of sanctions cannot serve as an efficacious deterrent to dilatory tactics, deception, or pettifoggery, in a particular case or within the system of federal courts generally. Accordingly, pursuant to Red. Rule Civ. Pro Rule 37, plaintiff is ORDERED to pay defendants costs and attorneys' fees caused by his misconduct.
Plaintiff's claim that it would be a financial strain to translate the tapes fails to explain why he did not bring this to the court's attention until defendants filed their Rule 37 motion.
Plaintiff's Request for an Extension
The court ordered plaintiff to respond to defendants' summary judgment motions by November 13, 2002. On the afternoon of November 13, 2002, the court received a letter from plaintiff requesting "an adjournment in the time for plaintiff to respond to defendants' motions for summary judgment." The letter was not styled as a motion, but rather constituted an informal request for an extension of two weeks to submit his reply. Plaintiff offered no explanation for why he was unable to file his response by the deadline clearly established by the court, why he required two additional weeks, or why he waited until the last possible moment to request an extension. He did not file a Local Rule 56.1 statement or any other papers.
Fed.R.Civ.P. 6(b)(2) provides that district courts may grant extensions of time in procedural matters such as this upon a showing of "excusable neglect." In Abu-Beniako, M.D. v. Maimonides Medical Center, 2001 WL 388096 (2d. Cir. (N.Y.) April 16, 2001), cert. denied, 543 U.S. 1136 (2002), the Second Circuit affirmed the district court's denial of a similar request. The Second Circuit noted that the district court's conclusion that the plaintiffs proffered excuse for its failure to timely file was "meritless" did not constitute an abuse of discretion. Id. at * 1. In contrast to Abu-Beniako, in the instant case, plaintiff did not provide a meritless excuse; indeed, he failed to offer any explanation whatsoever for his failure to meet the deadline to oppose defendants motion, meritless or otherwise. Unwilling to countenance further delays in plaintiffs case, which is itself without merit, the court exercised its broad discretion in this area and denied plaintiffs request.
SUMMARY JUDGMENT STANDARD
According to Fed.R.Civ.P. 56(c), summary judgment "shall be rendered forthwith" if it is shown that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material fact exists, a plaintiff may not rest upon the mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In this vein, the Second Circuit has noted that "conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). of course, this standard applies with equal force in discrimination cases as it would in any other case in the federal courts. See Ashton v. Pall Corp., 32 F. Supp.2d 82, 87 (E.D.N.Y. 1999) ("'the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation'"). Thus, courts within the Second Circuit "have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination." Scaria v. Rubin, 1996 U.S. Dist. LEXIS 9659, at *14 (S.D.N.Y. 1996) (Peck, M.J.), aff'd, 117 F.3d 652 (2d Cir. 1997).
In assessing the record to determine whether genuine issues of material fact are in dispute, courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, if the moving party meets its initial burden, the non-moving party may not rely on conclusory allegations or speculation to create factual disputes. Instead, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).
Of course, in the employment discrimination context, courts must be sensitive to the fact that evidence of discrimination is generally not overt: "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law." Bickerstaff v. Vassar College, 196 F.3d 435, 447 (2d Cir. 1999) (internal quotations omitted). Courts must also "carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture. . . . Thus, the question is whether the evidence can reasonably and logically give rise to an inference of discrimination under all of the circumstances." Id. (emphasis added). Furthermore, when the case involves a claim of discrimination, the court should view the record in its totality, rather than in a piecemeal fashion. Fitzgerald v. Henderson, 251 F.3d 345, 360 (2d. Cir. 2001), cert. denied sub nom. Potter v. Fitzgerald, 122 S.Ct. 2586 (2002).
In their separate motions, defendants argues that they are entitled to judgment as a matter of law on both procedural and substantive grounds. Plaintiff failed to oppose defendants' motions. Accordingly, the facts set force in defendants' Rule 56.1 statements are deemed admitted. Because plaintiff failed to assert any facts in opposition to the motions for summary judgment. the court holds that plaintiff has failed to establish a prima facie case of discrimination or retaliation under Title VII, Section 1983, or the New York State and City Human Rights Laws. Notwithstanding the foregoing, the court shall address defendants' procedural arguments, lest plaintiff feel that he got a raw deal in another forum.
DISCUSSION
Plaintiff's SHRL and CHRL Claims
Defendants argue that plaintiffs third and fourth claims, which are brought under the New York State Human Rights Laws and the New York City Human Rights laws, respectively must be dismissed in light of the election of remedies doctrine. The relevant SHRL section reads as follows:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint hereunder or with any local commission on human rights, . . . provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division.
N.Y. Exec. Law § 297 (McKinney's 1999). The CHRL contains essentially identical language and allows a plaintiff to file suit "in any court of competent jurisdiction . . . unless such person has filed a complaint with the city commission on human rights or with the state division of human rights with respect to such alleged unlawful discriminatory practice or act of discriminatory harassment or violence." N.Y.C. Admin. Code § 8-502(a). Defendants observe that prior to commencing the instant action, plaintiff filed a charge of employment discrimination with the New York State Division of Human Rights. Accordingly, plaintiffs third cause of action, brought under the State Human Rights Laws, is barred by the election of remedies doctrine. Notwithstanding the fact that he did not raise his claim under the CHRL before the New York State agency, plaintiffs fourth cause of action, brought under the CHRL, fares no better. As Judge Sand observed in McNulty v. New York City Dept. of Finance, 45 F. Supp.2d 296, 303 (S.D.N.Y. 1999), "the election of remedies provisions operate to foreclose access to courts regarding any 'discriminatory practice' or act of harassment for which a claim is made "with the city commission on human rights or with the state division of human rights'" (citing N.Y.C. Admin. Code § 8-502(a) (emphasis added).
As in McNulty, the SHRL claims previously asserted and the CHRL claims now raised arise from the same alleged discriminatory and retaliatory practices. Having elected to pursue redress for those grievances before the SHRL, plaintiff is now foreclosed from bringing either CHRL or SHRL claims before this court. This result is in accord with the great weight of the authority from within this District. See, e.g., DiPalto v. New York City Off Track Betting Corp., 1998 WL 276180, at *3 (S.D.N.Y. May 28, 1998); Branker v. Pfizer, Inc., 981 F. Supp. 862, 865 (S.D.N.Y. 1997); Lyman v. City of New York, 1997 WL 473976, at *4 (S.D.N.Y. Aug. 20, 1997); Del Valle Hernandez v. New York City Law Dept. Corp. Counsel, 1997 WL 27047, at *11 (S.D.N.Y. Jan. 23, 1997); Hourahan v. Ecuadorian Line, Inc., 1997 WL 2518, at *6 (S.D.N.Y. Jan. 3, 1997); Koster v. Chase Manhattan Bank, 609 F. Supp. 1191, 1196 (S.D.N.Y. 1985); Collins v. Manufacturers Hanover Trust Co., 542 F. Supp. 663, 672-73 nn. 4-5 (S.D.N.Y. 1982).
Section 1981 Claim
The defendants argue that the NYSDHR finding of "no probable cause" on identical claims of discrimination and retaliation ought to be given preclusive effect. The court agrees that the Section 1981 claim must be dismissed. It is well-established in the Second Circuit that NYSDHR findings of "no probable cause" preclude a subsequent claim pursuant to Section 1981 based on the same facts unless the plaintiff can demonstrate that he did receive a full and fair opportunity to litigate the issues before the NYSDHR. See, e.g., DeCintio v. West. Co. Med. Cntr., 821 F.2d 111, 117-118 and n. 13 (2d Cir. 1987), cert. denied, 484 U.S. 965, 108 S.Ct. 455 (1987) (NYSDHR's unreviewed determination of "no probable cause" constituted res judicata precluding plaintiffs subsequent lawsuit under 42 U.S.C. § 1981). As the Second Circuit asserted in DeCintio,
The [NY]SDHR does not make a probable cause determination until the complainant has had a 'full opportunity to present on the record, though informally, his charges against his employer or other respondent, including the right to submit all exhibits which he wishes to present and testimony of witnesses in addition to his testimony.'821 F.2d at 117 (citation omitted). Accord, Evans v. New York Botanical Garden, 2002 WL 31002814 at *5 (S.D.N.Y. Sept. 4, 2002). "When a state agency 'acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." University of Tennessee v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220 (1986) (quoting United States v. Utah Contr. Min. Co., 384 U.S. 394, 422, 86 S.Ct. 1545 (1966)). Under New York law, the quasi-judicial determinations of administrative agencies will be awarded preclusive effect "when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law." Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499, 478 N.Y.S.2d 823, 825-26 (1984). 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 the prior action or proceeding. See DeCintio, 821 F.2d at 117 (2d Cir. 1987) (citing Ryan, 62 N.Y.2d at 499-501, 467 N.E.2d at 489-91.
It is clear that Mr. Alvarado's complaints with the NYSDHR concerned the same allegations of discrimination and retaliation as those presently before the court. Moreover, it has been held that the NYSDHR procedures satisfy the requirements that its investigation be pursuant to the adjudicatory authority and that there be a "substantial similarity to those used in a court of law." See, e.g., Mendoza v. SSC B Lintas, New York, 799 F. Supp. 1502, 1510 (S.D.N.Y. 1992). The defendants have met their burden.
In determining whether a party against whom preclusion is sought was afforded a "full and fair opportunity to litigate" in the administrative proceeding, a court must consider the "'realities of the prior litigation,' including the context and other circumstances which may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him." Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d 823, 467 N.E.2d 487 (citations omitted). Among the factors which are relevant to this inquiry are the nature of the prior forum, the importance of the issue or claim in the prior proceeding, the party's incentive and initiative to litigate the issue or claim, the competence and expertise of counsel, the availability of new evidence, the difference in the applicable law, and the foresceability of future litigation. Id. Presumably, Mr. Alvarado is aware of the nature of the prior forum, the importance of the issues or claims in the prior proceeding, his incentive and initiative to litigate the issue or claim, the competence and expertise of his counsel, the difference in the applicable law, and the foresecability of future litigation. Id. The plaintiff cannot, and indeed has not, brought forward any evidence which might suggest that he was denied a full and fair opportunity to litigate his claim in the administrative proceedings. He has utterly failed to meet his burden. Summary judgment is GRANTED with respect to the Section 1981 claim.
Title VII Claim
As the record indicates, plaintiff was never employed by CBLC and never applied to CBLC for a job. It appears that plaintiffs Title VII claim against CBLC is based upon the implicit predicate that CBLC is an "employment agency." Defendant CBLC insists that it is not an "employment agency," either in any lay sense or as that term is defined in the statute, and plaintiff fails to provide any evidence to the contrary at the summary judgment stage. Title VII provides that "the term 'employment agency' means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer." 42 U.S.C. § 2000e(c). While arguing that it is only an educational facility which provides job training classes to enrolled students, CBLC concedes that it does, in fact, provide employment assistance, but "only as an adjunct service and only to individuals who are current or former students." See Def. CBLC Mem. of Law at 12. CBLC points out that in his letter submission to the NYSDHR, plaintiff repeatedly referred to CBLC as a "school."
Plaintiff's complaint actually fails to identify the section of Title VII under which plaintiff brings his complaint against CBLC. Defendants, and the court, assume that the only section which the complaint could refer to is 42 U.S.C. § 2000e-2(b), which states: "It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin."
While it appears that CBLC is predominantly an educational facility, it is likewise clear that it provides employment-procurement services as a part of its regular operations. It may thus be argued that employment-procurement services constitute a "regular undertaking" of CBLC pursuant to the definition of "employment agency" provided in 42 U.S.C. § 2000e(c), see discussion supra. In anticipation of this argument, CBLC suggests that it does not fit within the definition inasmuch as CBLC was not an employment agency with respect to this plaint if that is, CBLC argues that since it provides the adjunct employment-procurement service only to current or former students, and since Mr. Alvarado never enrolled as a student but rather only applied for a JPTA-funded course, it ought not to be considered an employment agency pursuant to the statute.
Of course, plaintiff did not make this argument or any argument in opposition to defendants' motions. CBLC's claim in its Rule 56.1 Statement of facts that it is not an "employment agency" may be deemed admitted.
Litigation concerning the meaning of the term employment agency is rather sparse — indeed, this Circuit has not addressed the issue of whether a school which offers employment procurement services qualifies as an "employment agency" pursuant to Title VII. In Greenfield v. Field Enterprises, a Title VII case, the court stated that "the act clearly defines the activities of an employment agency in the traditional and generally accepted sense of that term. . . . Nothing in the statute or legislative history suggest a broader or different meaning." 4 Fair Employment Practice Cases 548, 550 (N.D.Ill. 1972). In Kaplowitz v. University of Chicago, 387 F. Supp. 42 (N.D.Ill. 1974), the district court acknowledged that a liberal construction of the term employment agency was required to best effectuate the purposes of Title VII, and found that the University of Chicago Law School was significantly involved in operating allegedly discriminatory placement facilities, stressing the importance to the school of finding employment for its graduates.
The court in Kaplowitz did not need to make an express finding that the law school acted as an employment agency in order to decide the case.
It is far from clear whether job-procurement is a sufficiently important service provided by CBLC for this court to consider it an employment agency under Title VII. In any case, even assuming arguendo that, pursuant to a liberal construction of the term, CBLC operates an "employment agency" subject to the strictures of Title, VII, the court finds that plaintiff has failed to state a prima facie case for a Title VII violation as to CBLC or WCC.
In any case, the court in Kaplowitz suggested that a law school placement office might be considered an "employment agency" with respect to students who were already admitted to the school and who were thus eligible for its services. In the instant case, plaintiff had not enrolled as a student in CBLC and was not eligible for its job-procurement services.
It is well-settled that in order to state a prima facie case for retaliation, plaintiff must show (1) that he was engaged in a protected activity known to the defendants; (2) that defendants took an action adverse to him; and (3) that there was a causal connection between the protected activity and the adverse action. See Gadsen v. Jones Lang LaSalle Americas, Inc., 210 F.2d 430, 442-443 (S.D.N.Y. 2002) (Motley, J.); Padob v. Entex Information Service, 960 F. Supp. 806, 814 (S.D.N.Y. 1997) (McDonnell Douglas burden-shifting analysis applies to retaliation claims and prima facie case consists of these three elements) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972)). These three elements are also required to state a prima facie case under Section 1981. See Jenkins v. Arcade Building Maintenance, 1999 WL 1051105 (S.D.N.Y. 1999).
Even assuming, arguendo, that plaintiff ever engaged in a protected activity, and that plaintiff established an adverse employment action, the record is bereft of any evidence of, indeed any plausible inference which might support a conclusion that, there is a causal connection between any putative protected activity and any adverse action on the part of defendants. As defendants keenly observe, plaintiff (presumably) urges the court to permit an inference of retaliation based solely on (1) plaintiffs allegation that he told employees at CBLC that he had previously filed an NYSDHR complaint against an employer and an employment agency; and (2) the fact that CBLC ultimately rejected his application for the JPTA-funded program. This the court cannot do.
The court has grave doubts about whether plaintiffs conduct — filing a complaint which claimed that plaintiff, a Hispanic male, was discriminated against on the basis of race and gender because his Hispanic male supervisor gave preferential treatment to a Hispanic male co-worker — constitutes "protected activity."
The court notes that the record is bereft of evidence that WCC engaged in conduct which constitutes an adverse employment action. WCC faithfully provided services to plaintiff from the time that he re-registered after being fired by Phillips Nizer until plaintiff discontinued use of its services. Plaintiff offers no evidence that WCC negatively influenced CBLC's application decisions.
Plaintiff offers (in its complaint) only a conclusory statement — that he was retaliated against — without providing any evidentiary support whatsoever. In addition, CBLC has advanced legitimate and nondiscriminatory reasons for its rejection of Mr. Alvarado's application. The record indicates that plaintiff applied for two separate JPTA-courses: Computer Support/Systems Analyst and Secretarial/Administrative. Admission to the Computer Support/Systems Analyst course required some previous employment in a computer-related area or demonstrably strong computer skills. Rivera Aff. at 4. Plaintiff's data-entry experience did not meet this requirement. Admission to the Secretarial/Administrative course required prior office experience. Again, CBLC reasonably determined that plaintiff did not have this requisite experience. Id. Defendants note, in addition, that plaintiffs behavior during the course of the application process was at worst harassing and, in any event, unprofessional. The court agrees that Mr. Alvarado's conduct, which included making numerous calls and leaving daily messages with CBLC, could reasonably have a deleterious effect on one's chances of obtaining employment. It is moreover reasonable to assume that CBLC would wish to accept the applications of those candidates who stood the best chance of obtaining employment after completion of the course. It is within the bounds of reason then — indeed, it is quite likely — that plaintiff, who did not have the requisite work experience for the programs to which he sought admission and who acted in an unprofessional manner during the application process, was not admitted for reasons that have nothing to do with retaliation. Plaintiff provides the archetype for a case which must be stopped in its tracks at the summary judgment stage as a matter of law. See, e.g., Padob, 960 F. Supp. at 814 (no prima facie case where plaintiff offered no evidence other than temporal proximity of a causal connection between her protected activity and her employer's adverse action).
The court hastens to add that the record which has been provided appears to contradict Mr. Alvarado's allegation of retaliatory treatment. Indeed, the record shows that after Mr. Alvarado told CBLC employee that he had engaged in a protected activity by filing a complaint against Phillip Nizer and Gainor, this employee continued to be "all friendly and nice" to him. He was thereafter given an entrance exam and then invited back for another interview before his application was ultimately rejected. It appears then that plaintiff's case consists of a request that the court make an inference of retaliation based on (1) temporal proximity and (2) plaintiff's beliefs concerning his qualifications for acceptance to the JPTA-funded program. The temporal proximity argument fails for an obvious reason, articulated by a court in one of our sister circuits:
A close temporal proximity will almost always occur in failure-to-hire cases because employers naturally make hiring decisions soon after receiving applications and conducting interviews. Thus, temporal proximity alone will usually be insufficient to establish a causal connection between the protected opposition to discrimination and not being hired.Kelly v. Goodyear Tire and Rubber Co., 220 F.3d 1174, 1179 (10th Cir. 2000).
In light of the foregoing, defendants' motions for summary judgment are hereby GRANTED. Plaintiffs case is dismissed with prejudice.