Opinion
11 Civ. 9616 (KBF)
08-29-2013
CHANDRABHUSHAN ANAND, Plaintiff, v. THE NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Defendant.
MEMORANDUM DECISION & ORDER
:
Pro se plaintiff Chandrabhushan Anand ("Plaintiff" or "Anand") filed this action on December 28, 2011 against his employer, New York State Division of Housing and Community Renewal ("Defendant" or "DHCR"), for violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (ECF No. 1.) Plaintiff filed an amended complaint on August 8, 2012, which provided additional factual detail but made substantially similar allegations. (Pl.'s First Am. Compl. for Employment Discrimination, ECF No. 16 ("Am. Compl.").) Plaintiff alleges, in substance, that Defendant denied him "promotions, overtime, reimbursement of travel vouchers, leave time," and a flexible work schedule on the basis of Plaintiff's national origin and in retaliation for complaints Plaintiff made. (Id. ¶¶ 4-6.)
The Court held an initial pre-trial conference on October 25, 2012, at which the Court ordered Plaintiff to provide Defendant with the equivalent Rule 26 disclosures that Defendant had already provided to Plaintiff by November 8, 2012. (ECF No. 31.) The Court also referred the matter to the Court's mediation program, a process which was to take place in parallel to the schedule governing the action. (Id.) On November 8, 2012, in response to a request from Plaintiff and in light of Hurricane Sandy, the Court granted Plaintiff an extension of time to submit his Rule 26 disclosures to November 26, 2012. (ECF No. 32.) On November 21, 2012, the Court granted an additional extension of time in light of Hurricane Sandy for Plaintiff to January 7, 2013. (ECF No. 33.) The Court ordered that discovery would close on May 10, 2013—ample time considering the lack of complexity of this case—and that trial would commence on July 15, 2013. (Id.)
On January 7, 2013, the court received a letter from Plaintiff asking that the July 15, 2013 trial be adjourned to "early October" because of an expected trip by Plaintiff to India. (ECF No. 36.) In response, the Court issued an order requesting certain information from the parties, including whether parties had complied with any discovery requests and the earliest date on which Plaintiff would be able to go to trial. (ECF No. 37.) According to the responsive letters submitted by the parties on January 14, 2013, the parties had exchanged initial discovery pursuant to Rule 26(a)(1) by that date and Plaintiff was available on July 15, 2013 for trial after all. (ECF Nos. 39, 40.) On January 16, 2013, the Court ordered the parties to confer and submit a joint letter setting forth any additional discovery they wished to conduct by January 22, 2013. (ECF No. 38.) On January 22, 2013, Defendant submitted a letter stating that it had been unable to confer with Plaintiff; on the same day, Plaintiff submitted a letter stating that he was "under medical treatment in the hospital until further notice," (ECF Nos. 42, 43.) The Court subsequently extended the date by which Plaintiff was to inform the Court and Defendant of any additional discovery he wished to take to February 8, 2013. (ECF No. 44.) On February 8, 2013, Plaintiff submitted a list of additional documents and interrogatories to which he requested responses. (ECF No. 46.) The parties subsequently agreed to respond to their respective outstanding discovery requests by March 15, 2013. (Anspach Decl. Ex. C, ECF No. 58-3.) While Defendant responded by that date, Plaintiff refused to sign a confidentiality stipulation governing the sensitive documents he requested or to otherwise respond to Defendant's requests, instead insisting he wanted to explain the discovery issues to the Court at the next conference. (Id.; ECF No. 51; ECF No. 54.)
Yet, following a pattern remarkably similar to the events in question, Plaintiff failed to appear at the status conferences on April 2, 2013 and April 11, 2013 for various alleged medical reasons and without providing adequate prior notice. (ECF Nos. 49-54.) As a result, on April 12, 2013, the Court ordered discovery closed and set a schedule for motions for summary judgment and related discovery motions. (ECF No. 55.) The Court notes that, though both settlement discussions and mediation took place in parallel to the schedule and events described above, neither avenue proved successful in resolving the dispute.
On May 3, 2013, Defendant timely moved for dismissal of the complaint with prejudice for failure to prosecute the action pursuant to Fed. R. Civ. P. 41(b), or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56 (the "Motion"). (ECF No. 57.) Defendant also served Plaintiff with a "Notice To Pro Se Litigant Pursuant to Local Rule 56.2 Who Opposes a Motion For Summary Judgment" on that day, which enclosed a copy of Rule 56 and Local Rule 56.1. (ECF No. 62.) In response to the Motion, on May 28, 2013, Plaintiff submitted a 20-page Affirmation consisting of 178 numbered paragraphs followed by 409 pages of miscellaneous documents. (Pl.'s Affirm. in Opp'n to Def.'s Mot., ECF No. 68 ("Pl.'s Affirm.").) Plaintiff did not submit a counterstatement pursuant to Local Rule 56.1(b). Defendant filed and served on Plaintiff its reply brief in support of the Motion on June 6, 2013. (ECF No. 72.)
The Court declines to decide Defendant's Rule 41(b) motion for dismissal for failure to prosecute because, for the reasons set forth below, Defendant's Rule 56 motion for summary judgment is GRANTED. I. BACKGROUND
Anand has worked at DHCR since November 2, 2006 as a Senior Accountant in the Weatherization Assistance Program's ("WAP") Fiscal Compliance Unit at 25 Beaver Street, New York, New York. (Def.'s Rule 56.1 Statement ¶ 1, ECF No. 60 ("56.1 Statement").) In this capacity, Plaintiff audits the use of federal funds by local non-profit and government organizations' (called "sub-grantees") to improve energy efficiency in their housing stocks. (Id. ¶ 5.) Much of Plaintiff's job involves visiting the sub-grantees, though he also works out of the office space at 25 Beaver Street. (Id. ¶¶ 1, 5, 27.)
Between November 2, 2006 and June 9, 2010, Plaintiff was supervised by Timothy Brogan, who was based in Albany. (Id. ¶ 2; Pl.'s Affirm. ¶ 36; Stellar Decl., Exhibit F: Henkin Aff. ¶ 2, ECF No. 59-3 ("Henkin Aff.).) From June 10, 2010 until September 2010, Plaintiff's immediate supervisor was Daniel Henkin, Manager of the Fiscal Compliance Staff of the WAP, who was based at the 25 Beaver Street location. (56.1 Statement ¶ 3; Henkin Aff. ¶¶ 2-3.) Since September 2010, Plaintiff has been supervised by Jeff Cain, Supervisor of the WAP Fiscal Compliance Unit. (56.1 Statement ¶ 4.) Cain's immediate supervisor is Henkin. (Id.)
There is some confusion in the record about when Henkin began supervising Anand. According to Henkin's affidavit, he began supervising Anand in April 2010. (Henkin Aff. ¶ 1.) According to Defendant's 56.1 Statement, on February 11, 2010, Henkin was promoted to Housing and Community Renewal Manager I, a position which included supervision of Anand, among others. (56.1 Statement ¶ 15.) Defendant's 56.1 Statement also indicates that, beginning on June 10, 2010, Henking became Anand's "immediate supervisor." (Id. ¶ 3.) Additionally, the Court notes that Plaintiff alleges in his amended complaint, without support, that he was "looked over" for this position despite being "eligible. (Am. Compl ¶¶ 24, 35-36.) Defendant, however, has offered evidence that Henkin's name appeared on the Civil Service List ranked second and Plaintiff's name was not on the List (Stellar Decl., Exhibit D; Karmel Aff. ¶ 9, ECF No. 59-1 ("Karmel Aff.").).
On or about June 29, 2010, a Job Opportunity Notice was posted for an "Associate Accountant/SG-23" position in the WAP Fiscal Compliance Unit at 25 Beaver Street. (56.1 Statement ¶ 6.) This position included the supervision of the Senior Accountants in the WAP Fiscal Compliance Unit statewide, including Plaintiff. (Id.) The Job Opportunity Notice had a closing date of July 13, 2010. (Id. ¶ 7.) Because the Associate Accountant/SG-23 position was a civil service position, it required permanent appointees to take the Civil Service Test, pass the test, and rank at the top of the resulting list. (Id. ¶ 8.) In the meantime, a temporary hire would be appointed to fill the job. (Id.) Plaintiff applied for the position on July 13, 2010, the closing date, but then asked that his application be withdrawn on August 5, before any selection was made, (Id. ¶¶ 9, 11.) Cain was provisionally appointed to the Associate Accountant/SG-23 position on August 24, 2010. (Id. ¶ 12.) Subsequently, Plaintiff sat for the Civil Service Test for the permanent position, but scored below Cain and five others. (Id. ¶ 13.) On May 18, 2011, Cain's appointment to the Associate Accountant/SG-23 position was made permanent. (Id. ¶ 14.)
When Plaintiff began working at DHCR, he worked a flexible schedule whereby he worked eight days out of every two-week cycle instead of the customary ten days, provided that he fulfilled the hourly requirements for the full two weeks within the eight-day period. (Id. ¶ 22; Henkin Aff. ¶ 4.) Henkin affirmed that, when he became Plaintiff's supervisor, Plaintiff was the only remaining employee who was working an eight-day schedule. (Henkin Aff. ¶ 4.) Further, Samantha Karmel, currently the Director of Personnel for DHCR, affirmed that, beginning November 1, 2008, eight-day schedules were eliminated for most employees and new requests for eight-day schedules were only to be granted in extenuating circumstances. (Karmel Aff. ¶ 11, Ex. 4.) Currently, there are no WAP fiscal monitors at DHCR who work an eight-day schedule. (56.1 Statement ¶ 24.)
Plaintiff alleges in his opposition papers that he filed a grievance against unspecified supervisors in September 2010. (Pl.'s Affirm. ¶ 125.) Plaintiff was then called in for a counseling session with Henkin on September 10, 2010, which is memorialized in a memo included in Plaintiff's opposition filings along with his own annotations. (Id. Ex. 2 at 35.) The session was apparently held in response to an electronic mail Plaintiff sent to several layers of department management on September 8. (Id. Ex. 2 at 37.) Following the counseling session, on October 8, 2010, Plaintiff filed a grievance with department managers Tom Carey and Dan Buyer requesting, among other things, "[n]o discriminatory standards." (Id. Ex. 2 at 32.) On October 21, 2010, Kathleen Malinoski of the DHCR Personnel Office sent Plaintiff a memorandum informing him that his grievance had been denied because the counseling session was not considered discipline (Id. Ex. 2 at 31).
Henkin affirms that, between October 2010 and January 28, 2011, Plaintiff failed to make scheduled field visits such that all sub-grantees to which he was assigned were audited in a timely manner—some sub-grantees were visited too frequently, some not frequently enough, and some not at all. (Henkin Aff. ¶ 8.) Plaintiff denies that the failure to visit certain new sub-grantees was his fault, arguing that he failed to visit these sub-grantees because his supervisor, Cain, failed to accompany him on these trips. (Pl.'s Affirm. ¶¶ 36-40, Ex. 2 at 60.)
The Court notes that, in an electronic mail dated February 15, 2011 that is attached to Plaintiff's Affirmation, Cain states: "I am not scheduled to go to the agencies with you. Please perform your review as you normally would." (Pl.'s Affirm Ex. 2 at 76.)
On February 1, 2011, Plaintiff called and sent an electronic mail to Cain to request the use of leave time on February 3. (Id. Ex. 2 at 58.) Cain responded the same day that he would not be able to receive approval by February 3. (Id.) On February 2, Plaintiff sent an electronic mail to Cain, with the subject line "Harrasment" [sic], which stated: "I had a discussion with Dan this evening which did not go well. I will give you the details if you need. Please look into it." (Id. Ex. 4 at 29.) Less than ten minutes later, Plaintiff sent an electronic mail to members of the unit's personnel office, Karmel and Malinoski, which stated; "I have a complaint against Mr. Dan Henkin for discriminating against me based on my national origins. Please guide me to the right person who looks into it if it is not you." (Id. Ex. 4 at 28.) The next morning, February 3, Plaintiff alleges that he left a voice message for Cain requesting the use of sick leave for that day; Plaintiff alleges that Cain "approved the plaintiff's leave, but retaliated by making the leave an unpaid one." (Am. Compl. ¶ 11.) On February 4, Plaintiff filed an internal complaint with the DHCR Affirmative Action Office (the "AAO") alleging national origin discrimination against Henkin and Tom Carey (the "AAO Complaint"). (Pl.'s Affirm. ¶ 47; 56.1 Statement ¶¶ 16-17; Stellar Decl. Ex. D: Ting-Zambuto Aff. ¶ 4, Ex. 1, ECF No. 59-2 ("Ting-Zambuto Aff.").)
The record reflects that Cain did grant Plaintiff's paid leave requests on other occasions. For instance, on March 6, 2011, Plaintiff requested bereavement leave following his father's death. (Stellar Decl., Exhibit G: Cain Aff. ¶ 6, ECF No. 59-4 ("Cain Aff.").) Although Cain affirms that no such leave category was available, he permitted Plaintiff to use his paid sick leave accruals from March 7 to April 15, 2011. (Id.)
On February 10, Henkin met with Plaintiff to counsel him about his failure to make scheduled field visits such that all sub-grantees were audited in a timely manner. (56.1 Statement ¶¶ 28-29; Henkin Aff. ¶ 8.) Henkin affirms that he also counseled Plaintiff on his recurring lateness, and informed Plaintiff that the unit did not permit "flextime" for any employees. (Henkin Aff. ¶¶ 6, 9.) Henkin told Plaintiff at the counseling session that Cain would set Plaintiff's schedule for sub-grantee visits going forward, and Cain continues to do so. (56.1 Statement ¶¶ 30-31.) Henkin advised Plaintiff during the session that their discussion was not disciplinary, that Plaintiff would have a chance to review notes from the meeting afterward, and that Plaintiff may take his own notes during the meeting. (Henkin Aff. ¶ 8, Ex. 1 at 1.) Defendant submitted a copy of a memorandum summarizing the session on February 10. (Henkin Aff. Ex. 1.) Plaintiff has offered an annotated version of the same memorandum, as well an electronic mail chain from several days later, in which he disputes various statements in the memorandum and provides additional commentary. (Pl.'s Affirm. ¶¶ 53-59, Ex. 2 at 35-37, 74-76.) Plaintiff alleges that Henkin counseled him for "wrong doings of others and also for situations for which the plaintiff had no control over (Software and system glitches)." (Am. Compl. ¶ 45.)
Four minutes before the February 10 counseling session, Plaintiff sent Henkin an electronic mail asking him not to retaliate in response to Plaintiff's "complaint of discrimination." (Henkin Aff. Ex. 1 at 1; Am. Compl. ¶ 46.) Henkin affirmed that he was unaware of the AAO Complaint prior to this message, and denies that he ever "made any comments to him or others or taken any employment action based on Mr. Anand's national origin." (Henkin Aff. ¶¶ 10-11.) Plaintiff asserts, without more, that it is "highly unlikely" that Henkin would not have known about the AAO Complaint before scheduling the counseling session. (Pl.'s Affirm. ¶ 122.)
The only reference to Plaintiff's national origin in the record is Plaintiff's allegation that Henkin "commented on the Plaintiff's accent." (Am. Compl. ¶ 44.)
The AAO scheduled an interview to discuss the AAO Complaint with Plaintiff for March 11, 2011. (56.1 Statement ¶ 18.) On March 6, 2011, Plaintiff asked to reschedule the interview because of personal circumstances. (Id. ¶ 18.) Despite multiple follow-up messages from the AAO, and at least three attempts to schedule an interview with Plaintiff over the next several months, Plaintiff declined to be interviewed. (Id. ¶¶ 18-19.) On August 3, 2011, Plaintiff stated that he was not interested in pursuing the AAO Complaint. (Id. ¶ 20.) Plaintiff himself acknowledges that he "expressed his disinterest in pursuing the complaint." (Pl.'s Affirm. ¶ 47.) While Plaintiff chose not to withdraw the AAO Complaint, he did not provide any additional written documentation in support of his claims despite being afforded the opportunity to do so. (56.1 Statement ¶ 20.) On November 15, 2011, the AAO recommended that the AAO Complaint be closed without further action due to the AAO's inability to develop a full factual record. (Id. ¶ 21.) On November 29, 2011, Plaintiff was notified of the AAO's decision. (Id. ¶ 22.)
Having evidently also initiated an external complaint process in addition to the AAO internal complaint process, on October 5, 2011, Plaintiff received his "right to sue" notice from the U.S. Equal Employment Opportunity Commission ("EEOC"). (Pl.'s Affirm. Ex. 1 at 3.) Plaintiff alleges that his complaint to the EEOC related to both national origin discrimination and retaliation discrimination. (Am. Compl. ¶ 31.) The notice explained that the EEOC had closed Plaintiff's case because the information he provided did not establish violations, but that Plaintiff's employer was not certified as compliant. (Pl.'s Affirm. Ex. 1 at 3.) The notice gave Plaintiff ninety days to file suit in federal court. (Id.)
From September through December of 2011, Plaintiff had an ongoing dispute with his supervisor, Cain, about whether Plaintiff should be paid overtime for the time spent traveling to local training sessions. (Pl.'s Affirm. Ex. 3 at 75-86; Cain Aff. Ex. 1 at 2.) Plaintiff asserts that he should have been paid for such overtime, whereas Cain stated that such overtime payments were not authorized. (Cain Aff. Ex. 1 at 2.) Plaintiff alleges that he was denied overtime and travel reimbursements for trainings on November 14, 15, and 16, 2011 in retaliation for filing his complaint with the EEOC. (Am. Compl. ¶ 15.)
On March 27, 2012, Cain held another formal counseling session regarding Plaintiff's use of extended leave time without advance notice. (Cain Aff. ¶ 5.) Cain affirms that, because of what he believed to be an abuse of the leave time policies, including paid sick leave, he asked that Plaintiff provide a physician's note for any future sick leave. (Id.) According to the memorandum Cain prepared following the session, Plaintiff was absent from work between January 13 and March 22, 2012, for what began as a brief vacation, then became an extended leave for Plaintiff to care for his mother, and then became leave for Plaintiff himself to recover from an illness. (Id. Ex. 1 at 1-2.) The memorandum also states that Cain asked Plaintiff to re-submit time sheets from November 2011 because they included unapproved overtime to attend training classes. (Id. Ex. 1 at 2.) As stated above, and as stated in the memorandum for the March 27, 2012 counseling session, Plaintiff argues that he should have been paid for such overtime. (Id.) At the outset of the March 27 session, Plaintiff asked if the meeting was in retaliation for his filing "a complaint"; Cain "restated that this is a counseling session, not discipline nor retaliation." (Id. Ex. 1 at 1.) On May 17, 2012, Plaintiff filed a grievance seeking removal of the memorandum and all related documents from his file. (Pl.'s Affirm. Ex. 3 at 38-40.) II. STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine issue of material fact in dispute. Fed. R. Civ. P. 56. In reviewing a motion for summary judgment, the Court must construe the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in his favor. Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986)).
In reviewing a motion for summary judgment involving a nonmoving, pro se plaintiff, the Court will "liberally construe[s] [the] pleadings and briefs submitted by [the] pro se litigant[]," "reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (quotation marks omitted). However, even a pro se plaintiff must offer some evidence that would defeat a motion for summary judgment. Saldana v. Local 32B-32J Serv. Emps. Int'l Union, No. 03 Civ. 1853, 2005 WL 66895, at *2 (S.D.N.Y. 2005) ("Even a pro se plaintiff [] cannot withstand a motion for summary judgment by relying merely on the allegations of a complaint.")
In employment discrimination cases, district courts should be cautious of granting summary judgment "where the employer's intent, motivation or state of mind is [the material fact] at issue," Balut v. Loral Elec. Sys., 988 F. Supp. 339, 343 (S.D.N.Y. 1997), but the remedy nevertheless remains available. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); Milione v. City Univ. of N.Y., 10 Civ. 5289 (AKH), 2013 WL 3157499, at *3-4 (S.D.N.Y. Jun. 21, 2013).
The law is clear that "[a] nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible." See T.Y. v. N.Y. City Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009). A pro se litigant is not excused from this rule. See S.E.C. v. Tecumseh Holdings Corp., 765 F. Supp. 2d 340, 344 n.4 (S.D.N.Y. 2011) ("Pro se litigants are . . . not excused from meeting the requirements of Local Rule 56.1 . . . .") (citing Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009)). Accordingly, while the Court construes facts in favor of the nonmovant on a motion for summary judgment, here, there are no material issues of fact. III. DISCUSSION
Plaintiff asserts, in substance, two sets of Title VII claims—(a) claims based on national origin discrimination; and (b) claims based on retaliation discrimination. For the reasons set forth below, both sets of claims fail.
a. National Origin Discrimination
Plaintiff alleges that Defendant unlawfully discriminated against him on the basis of his national origin, which he describes as Indian. (Am. Compl. at 3, ¶¶ 5, 63.) Title VII prohibits employers from "discriminate[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII provides that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." Id, § 2000e-2(m). "An employment decision violates Title VII when it is based in whole or in part on discrimination." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008).
To establish a prima facie case of national origin discrimination, Plaintiff has the burden of showing: (1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. See Williams v. R.H. Donnelly, Corp., 368 F.3d 123, 126 (2d Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Though Plaintiff satisfies the first two elements, and assuming he is able to satisfy the third element for any of his allegations, this set of claims fails because he has not alleged facts sufficient to establish the fourth element—circumstances giving rise to an inference of discriminatory intent.
Plaintiff alleges that, because of his national origin, he was denied promotions, paid leave time, overtime, travel reimbursements, and an eight-day compressed work schedule, and had his schedule for visiting sub-grantees set by his supervisor. (Am. Compl. ¶¶ 5, 7, 63.) Even assuming Plaintiff has alleged facts sufficient to show that he suffered an adverse employment action, there are simply no facts or evidence whatsoever that give rise to an inference of discriminatory intent. The only reference to Plaintiff's national origin in the record, including in the 419 pages of argument and documents that Plaintiff submitted in opposition to the Motion, is Plaintiff's allegation in the Amended Complaint that Henkin "commented on the Plaintiff's accent." (Id. ¶ 44.) Though the sentences preceding this allegation suggest that Henkin made this comment in a meeting at some point in late 2010, Plaintiff does not provide any further context concerning the substance or timing of the comment from which the Court might theoretically be able to infer discriminatory animus by Henkin. Henkin, for his part, affirms that he never made such comment, nor has he taken any employment action toward Plaintiff based on Plaintiff's national origin. (Henkin Aff ¶ 11.)
Though the Court need not decide this issue, it notes that it is highly unlikely that any of Plaintiff's allegations rise to the level of a "materially adverse change" in the conditions of employment "more disruptive than a mere inconvenience or an alteration of job responsibilities." See Richardson v. New York Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999); Galabva v. New York City Bd. Of Educ., 202 F.3d 636, 640 (2d Cir. 2000). For instance, Plaintiff was either not on the corresponding Civil Service List or was not at the top of such List for the two promotions he alleges he should have received. (56.1 Statement ¶¶ 6-13; Karmel Aff. ¶ 9.) Additionally, Plaintiff was treated no differently than other WAP fiscal monitors at DHCR with respect to his eight-day compressed schedule; in fact, he was the only employee who maintained such a schedule when Henkin became his supervisor, which was after a November 2008 policy change that eliminated eight-day schedules for most employees and permitted new requests to be granted only in extenuating circumstances. (Henkin Aff. ¶ 4; Karmel Aff. ¶ 11, Ex. 4.)
The Court notes that Henkin is one of at least four people Plaintiff alleges discriminated against him on the basis of his national origin. (Am. Compl. ¶ 5.) Plaintiff does not allege any facts related to his national origin that concern the other three.
Though Plaintiff refers to either national origin or racial discrimination in his various complaints, these complaints also do not include any factual allegations that would give rise to an inference of discriminatory intent. The Court notes that, with respect to his AAO Complaint, Plaintiff repeatedly declined to be interviewed by the AAO or to otherwise supplement the factual record to be reviewed as part of the AAO Complaint. (56.1 Statement ¶¶ 18-19.)
The Court finds whether Henkin commented on Plaintiff's accent during a meeting in late 2010 to be immaterial because, even when viewing the facts in the light most favorable to Plaintiff, Plaintiff has failed to plead any facts that would create an inference that adverse employment action was taken by Defendant based on Plaintiff's national origin. See Beauchat v. Mineta, 257 F. App'x 463, 465 (2d Cir. 2007) ("None of [plaintiff's] supervisors, trainers, or evaluators said or did anything that suggests that their decisions were tainted with discriminatory animus."); Milione, 2013 WL 3157499, at *4 ("Plaintiff has given no evidence that Defendants changed his job title and responsibilities because Plaintiff is Italian American."). Because Plaintiff has failed to establish a prima facie case of Title VII discrimination on the basis of national origin, the Court grants Defendant's motion for summary judgment dismissing this set of claims.
To the extent the Amended Complaint can also be read as asserting a Title VII claim based on a hostile work environment—which also requires proof that Plaintiff was discriminated against on the basis of his national origin, see Richardson, 180 F.3d at 440—that claim should be dismissed for the reasons set forth above. --------
b. Retaliation Discrimination
To establish a prima facie case of retaliation discrimination under Title VII, a plaintiff must establish that (1) he engaged in protected activity known to the defendant; (2) that he suffered an adverse employment action; and (3) that there was a causal connection between the protected activity and the adverse employment action. See Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004) (citations omitted). A plaintiff suffers an adverse employment action when there has been a "materially adverse change" in the conditions of employment that is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Richardson, 180 F.3d at 446; Galabya, 202 F.3d at 640 (citations omitted). A plaintiff can establish a causal connection between the protected activity and the adverse employment action by showing that the two were close in time, that other similarly-situated employees were treated differently, or with proof of retaliatory animus. Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990).
Plaintiff alleges that Defendant retaliated against him in several ways: (i) the February 10, 2011 counseling session with Henkin and the setting of Plaintiff's schedule for visiting sub-grantees by Cain (Am. Compl. ¶¶ 7, 13, 34, 45); (ii) the denial of paid leave on February 3, 2011 and then subsequently, on unspecified occasions, reductions in previously accrued leave (Am. Compl. ¶¶ 11, 63, 81); (iii) by asking Plaintiff to work on Saturdays and on a holiday in December 2011 (Am. Compl. ¶ 6); (iv) the denial of reimbursement for travel expenses in November 2010, November 2011, and May 2012 (Am. Compl. ¶¶ 15, 73, 75); and (v) the denial of overtime in November 2011, and then again in April and May 2012 (Am. Compl. ¶¶ 75, 76). Despite his numerous allegations, however, Plaintiff again fails to establish a prima facie case; even assuming Plaintiff satisfies the first element for any one of his claims, Plaintiff's Title VII retaliation discrimination claims fail because he has not alleged facts sufficient to establish either that he suffered an adverse employment action or that there was a causal connection between any protected activity and an adverse employment action.
i. Counseling Session and Schedule Oversight
Neither the February 10, 2011 counseling session with Henkin nor the setting of Plaintiff's schedule for sub-grantee visits by Cain constitute adverse employment actions. With respect to the counseling session, Henkin told Plaintiff that the session was not disciplinary, and "in the context of the issuance of a 'counseling memo,' . . . 'criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action" as a matter of law. Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011). Similarly, Cain's setting of Plaintiff's schedule for visits to sub-grantees after the February 10, 2011 counseling session, though perhaps unpleasant for Plaintiff, did not result in any material changes to Plaintiff's job responsibilities—Plaintiff continued to visit and audit the sub-grantees to which he had been assigned, a job he had performed for years. See Fairbrother v. Morrison, 412 F.3d 39, 56 (2d Cir. 2005) (holding no adverse employment action where transfer between departments was viewed negatively by employee but employee's substantive role remained the same); Williams, 368 F.3d 123, 128 (2d Cir. 2004) ("If a transfer is truly lateral and involves no significant changes in an employee's conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action.") (quoting Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532-33 n. 6 (10th Cir. 1998) (internal quotations omitted).
ii. Denial and Reductions of Paid Leave
Even assuming denials or reductions of Plaintiff's paid leave time took place and constitute adverse employment action, Plaintiff has alleged no facts whatsoever concerning a causal connection with his protected activities. The only allegation concerning denial of paid leave time that is specific enough for the Court to evaluate is the denial of paid leave by Cain for February 3, 2011—four to five months after Plaintiff filed his September and October 2010 grievances, and one day before Plaintiff filed the AAO Complaint. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing cases dismissing Title VII retaliation claims with three-and four-month periods between protected activity and adverse employment action, and noting that temporal proximity must be "very close"). Plaintiff sent an electronic mail to Cain the prior evening, February 2, concerning a discussion with Henkin that "did not go well," but there is no evidence in the record that Plaintiff and Henkin discussed Plaintiff's prior complaints or grievances (or that Henkin relayed that conversation to Cain). In fact, the Court notes that Plaintiff's own documents show that, on February 1, Plaintiff had asked to use paid leave on February 3, which Cain denied because he was not able to obtain approval in time. To that end, Defendant has provided substantial evidence of Plaintiff's abuse of DHCR's leave time policies. (56.1 Statement ¶¶ 34-35.) Plaintiff fails to offer any facts in support of his allegations that the denial of paid leave for February 3, 2011, or on any other days, was causally connected to protected activity.
iii. Work on Saturdays and a Holiday
Plaintiff alleges, without more, that he was "asked to work during the month of December 2011 on Saturdays and on Christmas Holiday (December 26, 2011)." (Am. Compl. ¶ 6.) Plaintiff himself acknowledges in his Affirmation, however, that his supervisors corrected this error after Plaintiff left voice messages about this schedule. (Pl.'s Affirm. ¶ 82.) Plaintiff provides no evidence that he worked on Saturdays during December 2011. Cain affirms that he has "reviewed the time and attendance records for senior accountants under [his] supervision in 2011, and none worked on Saturday or on Christmas, which that year was celebrated on December 26, 2011." (Cain Aff. ¶ 3.) The Court finds that the fact that Plaintiff may have been briefly scheduled to work on December 26, 2011, but ultimately did not do so, does not constitute adverse employment action. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) ("We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth a general civility code for the American workplace.") (internal quotations omitted).
iv. Reimbursement of Travel Expenses
Plaintiff also alleges that Defendant retaliated against him by denying reimbursement of travel expenses in November 2010, November 2011, and May 2012. (Am. Compl. ¶¶ 15, 73, 75.) Even assuming that these denials constituted adverse employment action, Plaintiff has not offered any facts from which the Court can infer that these denials had a causal connection to protected activity beyond his bare, repetitive allegations of knowledge and retaliation. See Uddin v. City of N.Y., 427 F. Supp. 2d 414, 434 (S.D.N.Y. 2006) (holding no causation where plaintiff failed to show he had been treated differently than other employees, and noting "allegations without admissible evidence cannot suffice to oppose a motion for summary judgment"). Plaintiff fails to establish a prima facie case on the basis of his allegations that he was denied reimbursement of travel expenses.
v. Denial of Overtime
Finally, Plaintiff alleges that he was denied overtime in November 2011, and then again in April and May 2012. (Am. Compl. ¶¶ 75, 76). Beyond conclusory allegations of retaliation, Plaintiff has not offered any facts in the record to suggest that these denials of overtime were causally connected to any protected activity. See Uddin, 427 F. Supp. 2d at 434 ("There must be more evidence than plaintiff's own speculations [to show a causal connection]."). In fact, many of the documents Plaintiff offers with his Affirmation indicate that Cain denied Plaintiff's overtime requests on these occasions because the overtime was either for travel to and from local training sessions, which is not part of the work day, or was otherwise not approved in advance. (Pl.'s Affirm Ex. 3 at 21-25, 41-42, 84-86, Ex. 4 at 1-5.)
In sum, because Plaintiff fails to establish a prima facie case of Title VII retaliation discrimination for any one of his allegations, the Court grants Defendant's motion for summary judgment dismissing this set of claims as well. IV. CONCLUSION
For the reasons set forth above, Defendant's motion for summary judgment is GRANTED. Defendant's Rule 41 motion for failure to prosecute is thus DENIED as moot. The Clerk of Court is directed to terminate the motion at ECF No. 57 and to close this case.
SO ORDERED. Dated: New York, New York
August 29, 2013
/s/_________
KATHERINE B. FORREST
United States District Judge Copy to: Chandrabhushan Anand
P.O. Box 566
Jericho, NY 11753