Opinion
18-cv-3455 (NG) (ST)
2024-01-23
David ARKORFUL, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
Joshua Samuel Carlo Parkhurst, Law Offices of Joshua Parkhurst, New York, NY, for Plaintiff. Alana Danielle Sisnett, Amanda Blair, Kami Zumbach Barker, Maria Fernanda DeCastro, New York City Law Department Office of the Corporation Counsel, New York, NY, for Defendant.
Joshua Samuel Carlo Parkhurst, Law Offices of Joshua Parkhurst, New York, NY, for Plaintiff.
Alana Danielle Sisnett, Amanda Blair, Kami Zumbach Barker, Maria Fernanda DeCastro, New York City Law Department Office of the Corporation Counsel, New York, NY, for Defendant.
OPINION & ORDER
GERSHON, United States District Judge:
Plaintiff David Arkorful brings this action against his employer, Defendant New York City Department of Education ("DOE"), pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq., New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law § 296 et seq., New York City Human Rights Law ("NYCHRL"), N.Y.C. Administrative Code, § 8-101 et seq., and the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Mr. Arkorful alleges that DOE discriminated against him on the basis of race, national origin, and disability; that it created a hostile work environment; and that it retaliated against him for bringing forth complaints. DOE now moves for summary judgment on all of Mr. Arkorful's claims. For the reasons that follow, the motion is granted in part and denied in part.
Mr. Arkorful voluntarily dismissed the claims he brought under 42 U.S.C. § 1983 at a pre-motion conference held on February 10, 2021.
I. Facts
The record reveals numerous areas of dispute which are identified below. Where facts are stated without indicating a dispute, they are undisputed.
A. Mr. Arkorful's Job and Performance History at DOE
Mr. Arkorful was born in Ghana and identifies as African/American. In April 2006, DOE hired Mr. Arkorful as a Certified Wide Area Network Administrator,
Level 4 — a civil service title and engineering position within DOE's Division of Instructional and Information Technology ("DIIT") — where he reported to Lou Pezzengrilli, the Director of Wide Area Networking. He had previously worked for DIIT as an outside consultant. Mr. Arkorful performed quality assurance ("QA") and engineering support work in-house for DIIT, work that had previously been done by an outside vendor. QA work involves verifying that DIIT's network and engineering projects meet infrastructure standards and ensuring proper completion of various activities such as programming and security. In addition to this QA work, Mr. Arkorful worked on wireless integration, wireless network infrastructure for DOE schools, and advised on wireless technologies within school environments.
Between 2008 and 2009, Mr. Arkorful's direct supervisor became Martin Kerner when Mr. Pezzengrilli left DOE. Mr. Kerner was the Director of Network QA & Engineering Support and also directly supervised four other individuals: Peter Lombardo, an analyst; Russel Brattle, an Engineer and Consultant; and Neil Lombardo and Keith McComb, both of whom were QA and Technical Support Technicians.
Mr. Kerner reported to Joseph Iacoviello, the Director of Enterprise Deployment, Implementation, and Vendor Management. At that time, Mr. Iacoviello also directly supervised three other individuals, each of whom had his own team of direct reports: Sedrick Assitar, Christopher Martino, and Eric Berger. According to a November 15, 2013 organizational chart, Mr. Berger was the Lead of the Project Deployment Team.
The parties dispute Mr. Berger's title. Mr. Arkorful argues that DOE "submitted no evidence or testimony indicating how Berger was the Team Lead" or how his job was different from other members of the Project Deployment team. Plaintiff's Response to Defendant's Local Rule 56.1 Statement ("Pl. Rep. to Rule 56.1 Statement") ¶8. However, Mr. Arkorful does not dispute the authenticity of the organizational chart in the record nor offer evidence to contradict it.
The parties do not dispute that Mr. Arkorful was known as "Team Lead" during the time he reported to Mr. Kerner, nor that such a title had no relation to civil service job titles, but they disagree as to the title's significance. DOE contends that "team lead" was an in-house, functional title given to employees by local management. Iacoviello Dep. at 31-33; Anaya Dep. at 248. According to Mr. Arkorful, being team lead meant that he would "handl[e] all of the major implementation at the schools, interfacing with [the School Construction Authority] to bid out new schools and . . . all of the other major projects that were going on in most of the schools within the DOE." Arkorful Dep. at 67:4-8. Engineering support work that Mr. Brattle, Mr. McComb, and Mr. Lombardo performed as QA Support Technicians would be "escalated" to him for support "if they should encounter major problems." Arkorful Dep. at 67:10-13. Emails from April 2014 to Mr. Kerner and Mr. Iacoviello show Mr. Arkorful using the title "Team Lead, Engineering Support (ES)" in his email signature block. Further, Mr. Iacoviello testified that Mr. Arkorful "always had project management" responsibilities. Iacoviello Dep. at 32:22-24.
After Mr. Kerner retired in 2014, Mr. Arkorful began to report directly to Mr. Iacoviello. It is undisputed that Mr. McComb and Mr. Lombardo reported to Mr. Arkorful prior to their termination from DOE. See Memorandum signed by Mr. Iacoviello on November 24, 2014 ("effective Monday, November 24th, you will be reassigned to the Quality Assurance
and Engineering Support reporting to David Arkorful. Please make arrangements with your new manager regarding your work schedule and location."). In a letter of recommendation, Mr. Iacoviello affirmed that Mr. Arkorful had "successfully completed . . . challenging projects by leading and coordinating the efforts of his team." The letter further stated that Mr. Arkorful "has shown exceptional expertise in the field of Information Technology" and that he "works with great integrity and has the passion for motivating other employees."
Mr. Brattle ceased performing QA work in 2014, and Mr. McComb and Mr. Lombardo were terminated for disciplinary reasons; thus, at times, Mr. Arkorful was the only person on the QA Team or working on QA. Despite this, Mr. Iacoviello stated that it was "most likely not" possible for one person to do all the QA work. Iacoviello Dep. at 57:10-12. The parties do not dispute that there was a backlog of QA work, but do dispute the extent of resources, if any, that were given to Mr. Arkorful to help him. DOE has shown that Mr. Arkorful was given the assistance of interns and was allowed to train employees from other DIIT groups in QA work so as to enable them to provide assistance to the QA group when they had time. Mr. Arkorful, however, disputes the existence of this support, noting that Mr. Iacoviello informed him that the department could not bring in any additional resources. Further, he has adduced evidence that employees from other DIIT groups who were asked to help with QA work would opt-out of doing so, including an email in which Mr. Diomede told him to reassign tickets he had assigned to another staffer when the other staffer complained she did not have enough time. Nonetheless, while there was a backlog of 400 quality assurance tickets when Mr. Kerner left in 2014, by January 2016, the backlog, under Mr. Arkorful, was down to 37.
The ticketing system is a way to monitor workflow; it entails opening a "ticket" anytime one goes to a school to do a project, and closing the ticket once that project is completed. See Arkorful Dep. 136:1-4.
On April 20, 2015, Mr. Arkorful began reporting to Joseph Davis, who reported to Frank Diomede. Mr. Davis has described Mr. Arkorful's work as "exemplary." An April 29, 2015, organizational chart lists Mr. Arkorful's title as "Team Lead/Engineer, QA and Engineering Support." See Def. Exh. II. On February 17, 2016, Mr. Diomede sent an email to Mr. Arkorful with the subject line "QA Assignment/Status" which reads, "David, I just want to say thank you for getting the QA organized. I appreciate the hard work you're doing and wanted to say Thanks." Twelve days later, Mr. Arkorful sent an email to Mr. Diomede referencing a recent conversation about opportunities for growth and advancement, and in it he specifically asked Mr. Diomede "if there are any opportunities for growth and career advancement, as well as potential positions with leadership roles within the group." Mr. Diomede told him he would get back to him.
B. Accommodations Given to Mr. Arkorful in 2014 and 2015
In February 2014, DIIT's Human Resources ("HR") department provided Mr. Arkorful with a one-hour flexible band of time ("flextime") in which he could arrive at the office. Mr. Arkorful has not adduced evidence that this flextime was granted to him as an accommodation for a disability cognizable under the ADA. Indeed, HR
Simply because a workplace offers an accommodation does not mean it is an ADA accommodation. Although Mr. Arkorful claims this flextime was given pursuant to the reasonable accommodation process, he offers no evidence that it was granted based on a disability cognizable under the ADA, which requires a "a physical or mental impairment that substantially limits one or more major life activities of such individual," a record of that impairment, or being regarded as having such an impairment. 42 U.S.C. § 12102. A disability within the meaning of the Act is distinct from a "mere impairment." Dolac v. Cnty. of Erie, No. 20-CV-2044, 2021 WL 5267722, at *1 (2d Cir. Nov. 12, 2021) (internal citation omitted). At the time this flextime was provided, Mr. Arkorful was often late as the result of commuting issues on the New Jersey Transit system. Even his own testimony describes any health-related issues at this time solely as a "health condition" and his "health situation, [a] head condition," but nothing more specific. Arkorful Dep. 91:11-92:14; see also Emails between Mark Kerner and Jeanine Anaya in February 2014. The record therefore does not establish that any flextime given was an ADA accommodation.
later informed Mr. Arkorful, in May 2016, that this one-hour flextime would continue only upon submission of a doctor's certification.
Also in 2014, Mr. Arkorful received a two-month leave of absence as an accommodation related to depression based on a psychiatrist's recommendation. Mr. Arkorful then suffered a stroke on March 1, 2015. He did not take formal leave, but was allowed flexibility in his schedule. Specifically, according to HR Director Jeanine Anaya's testimony, DOE permitted him to work less than full days without being penalized. See Anaya Dep. at 39-41. According to Ms. Anaya, this agreement was not "formal," and it was not an "official documented accommodation," but "more of a verbal agreement." Id. at 41:17-19. Ms. Anaya noted that "there were a lot of days where [Mr. Arkorful] just was not able to work a full seven hour [day]" and a manager would simply allow him to choose not to take a leave, still come in, but not work the full day — no one was penalizing him for not arriving right at 9:30 or leaving early for a doctor's appointment. Id. at 40:2-14. Mr. Arkorful has not offered any evidence to the contrary, i.e., to indicate this allowance was a formal ADA accommodation.
C. The 2016 CTO Office Reorganization
In late 2015, DIIT proposed a reorganization of the office of the Chief Technology Officer (CTO). According to DOE, the goal was to make the office more efficient. It was eventually determined that, as part of this reorganization, Mr. Berger would move from Lead of the Project Management Team to Team Lead of the QA group. Drafts of proposed organizational charts under the new restructuring were emailed to HR in February 2016, and Ms. Anaya approved the specifics of the restructuring with respect to the QA group. Mr. Arkorful described Mr. Berger as "white." Arkorful Dep. at 137:11. Mr. Berger did not apply for the position, but testified that he was told by Mr. Diomede and Mr. Iacoviello that they wanted him to lead this team. The parties dispute who made the proposal and who was involved in the decision to have Mr. Berger take on that role, as discussed further below. There is no dispute that Mr. Berger had no previous experience with QA, but did have experience with project and personnel management. This role did not come with a salary increase for Mr. Berger, and it was one of many internal moves made as part of the reorganization. On March 3, 2016, Mr. Diomede informed Mr. Arkorful that he would report to Mr. Berger under the reorganized structure. When he took over the QA team in March 2016, Mr. Berger was given four full time employees to work under him. According to Mr. Davis, when Mr. Berger became Mr. Arkorful's supervisor, he "basically took over" Mr. Arkorful's position, but not all of the responsibilities that came with it, because Mr. Berger was competent only to do the managerial work, not the technical QA combined with managerial work that Mr. Arkorful had been doing. Davis Dep. at 36:1-22.
During the February 10, 2021, pre-motion conference, Mr. Arkorful's counsel responded to an inquiry about Mr. Berger's race by affirming that Mr. Berger is white. DOE counsel did not dispute this answer. Tr. 22:9-10. Any argument that plaintiff has failed to proffer evidence of Mr. Berger's race is rejected.
On March 17, 2016, Mr. Arkorful had a meeting at which he complained to the CTO, Tom Kambouras, about being stripped of his Team Lead position. Mr. Arkorful stated that he believed that, because he was black and from Ghana, he was being treated differently from coworkers who had received promotions. Arkorful Decl. dated August 6, 2021 113; Arkorful Dep. at 156:17-19 ("he was the first person that I spoke with regarding my concerns with the way I'm being discriminated against in the organization."). DOE does not dispute that those topics were mentioned in the meeting, but notes that, in a follow up email to Mr. Kambouras in which Mr. Arkorful attached a document outlining his concerns about the reorganization, Mr. Arkorful does not mention race, national origin, or disability discrimination.
Mr. Kambouras sent an email on March 21, 2016, announcing the reorganization of the CTO office. It stated:
Eric Berger is joining the Service Delivery & Network Support team led by Frank Diomede. In his new role, Eric will oversee QA Engineering & internal project related activities. Joining Eric's team will be David Arkorful, Benjamin Ng, Virginia Lee and Jose Garayua.
The next day, on March 22, 2016, Ms. Anaya emailed Mr. Davis, Mr. Diomede, Mr. Carlo, and other HR associates regarding Mr. Arkorful's time and attendance, noting that, when individuals are late due to transit delays, generally they should be marked as late rather than having that time deducted from annual leave. The parties do not dispute that this email was sent, or its contents, but Mr. Arkorful contends that it is not an accurate representation of the policy in practice because of courtesies given to other employees. Mr. Davis testified that Mr. Arkorful was not the only one who took annual leave against his lateness. Davis Dep. at 25:22-24. Mr. Davis was specifically told to monitor Mr. Arkorful's attendance but refused to do so because he thought it was a "tactic" to create a negative record that "could probably be used to either get him fired or prevent him from being promoted." Davis Dep. at 26:2-18.
Mr. Diomede approached Mr. Arkorful in April 2016 following the reorganization and asked him to train Mr. Berger. During this conversation, Mr. Arkorful asked him why he was passed over for promotion once again, and Mr. Diomede cursed and responded: "[T]his is how we do things in America, and if you don't like it you can go to wherever you came from." Plaintiff EEOC Afft. dated July 10, 2017; see also Arkorful Dep. at 151:2-4.
Mr. Arkorful emailed Ms. Anaya on April 14, 2016, to file a formal complaint regarding his work conditions stating that he felt he had been discriminated against on the basis of his race and ethnic background and that he was subjected to a systemic pattern of harassment. On April 20, 2016, Ms. Anaya and an associate met with Mr. Arkorful, and on May 10, 2016, Ms. Anaya gave Mr. Arkorful information about filing complaints of discrimination with DOE's Office of Equal Opportunity &
Diversity Management ("OEO"). He filed a complaint on the basis of race and ethnicity/national origin discrimination dated June 24, 2016.
Meanwhile, in May 2016, after Mr. Arkorful had complained, Mr. Berger's Team Lead assignment was rescinded. On May 25, 2016, Ms. Anaya sent an email to Mr. Carlo and Mr. Diomede noting that they "need to meet with Eric Berger to explain the situation with the reorganization and the need to rescind his office title change to Team Lead." Ms. Anaya told Mr. Berger during the meeting in which this was conveyed to him, that, in wanting to give him the responsibility for leading the group, she "failed to realize that it stopped an opportunity for someone." Anaya Dep. at 190:18-191:2. Prior to speaking with Mr. Berger, Mr. Carlo had noted that the need to "make sure [they] are all on the same page with what [they] are communicating" to Mr. Berger. Def. Exh. T, May 2016 Emails. Ms. Anaya testified that she had not seen this move as a promotional opportunity, but wanted to meet with Mr. Diomede and Mr. Carlo to discuss whether it was a "missed opportunity" to not consider Mr. Arkorful for the role. They agreed to post a job description for the role so that Mr. Arkorful could apply for it, but decided not to post it when he was out on leave for an extended period of time.
D. Mr. Arkorful's 2016-2017 Leave of Absence and Subsequent Return
After Mr. Arkorful was diagnosed with major depression and anxiety, he took a leave of absence pursuant, in part, to the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; it began in August 2016 and was extended multiple times until he returned to DOE in December 2017. The parties do not dispute that August 2016 through February 2017 was paid leave and the remainder, through December 2017, was unpaid. When Mr. Arkorful returned, he did so via an accommodation, consistent with his physician's recommendation, in which he would return pursuant to a gradually increasing work schedule: from December 11, 2017, through February 25, 2018, Mr. Arkorful would work three days a week for four hours a day (a 12-hour workweek); from February 26, 2018 through March 25, 2018, Mr. Arkorful would transition to a 20-hour workweek schedule; and beginning on March 26, 2018, Mr. Arkorful would return to a full-time, 35-hour workweek schedule.
The record is not clear regarding the extent to which this leave was an FMLA leave, as Mr. Arkorful was also entitled to paid sick leave under DOE policy. Nonetheless, it is undisputed that Mr. Arkorful discussed FMLA leave and a planned submission of a request for FMLA leave with HR, and took at least some of this 2016-2017 leave pursuant to the FMLA; neither party adduced evidence of any additional basis for his leave beyond the FMLA or DOE policy that applied to all employees. See Pl. Rep. to Rule 56.1 Statement ¶¶43, 49; May 20, 2016, email between HR and Mr. Arkorful; Anaya Dep. at 124:21-125:6.
Ms. Anaya testified that this was a "huge accommodation," one that they had "never provided before" because it is complicated to bring someone back to a "part-time, annual work schedule." Anaya Dep. at 185:5-7. To effectuate Mr. Arkorful's gradually increasing work schedule, DOE created a "new position" for each of the adjusted work schedules in DOE's personnel system.
It is undisputed that, when Mr. Arkorful worked only four hours per day, he was not given official breaks, nor did he have the one-hour flextime band he previously had. Ms. Anaya testified that the expectation is that, if someone is working an agreed-upon four-hour day, he is not leaving
the building during that shortened working time. See Anaya Dep. at 227:7-11. There also is no dispute that Mr. Arkorful did not retain health benefits when he was working fewer than twenty hours per week, or when he was on unpaid leave. According to Mr. Arkorful, his classification as a part-time employee, and corresponding lack of previously provided flextime, constituted a revocation of prior accommodations. However, he has offered no evidence that he requested an accommodation different from the one provided: the gradually increasing work schedule in which he returned to DOE working, at first, only twelve hours per week.
The parties do not specify the health benefits that were unavailable to Mr. Arkorful during these time periods.
In a note dated July 26, 2017, Mr. Arkorful's physician requests a gradually increasing work schedule, but does not refer to a flextime band.
Mr. Arkorful testified that, after he returned from leave in December 2017, he was excluded from meetings, was excluded from a high-level project until the last minute, was not given an opportunity to continue his work as he had been doing prior to his leave, was required to report to and receive assignments from a technician he had formerly trained and supervised, was being watched by Mr. Diomede, and had flextime "revoked." See Arkorful Dep. at 194-96. He also testified that this flextime was restored following a grievance he filed with his union representative, although no date of this restoration is provided. See Arkorful Dep. at 169:5-16. According to Mr. Arkorful, Mr. Iacoviello verbally abused him on December 20, 2018, by calling him "stupid" and saying, "you will never win."
Mr. Arkorful could not recall if the exclusion he was describing took place in 2018 or 2019.
Mr. Arkorful also testified during his deposition that, upon his return, he had his "salary cut for no reason;" however, no further reference to this statement is ever made by Mr. Arkorful. Mr. Arkorful never explains the circumstances, how much it was purportedly cut, or the timing of when the cut took place. Mr. Arkorful also testified that he noticed "substantial deductions" from paychecks, but did not know the amount or provide any other evidence as to the context of these deductions. Arkorful Dep. at 171-172. He does not rely on or even refer to this testimony in making any of his arguments.
Mr. Arkorful filed two more complaints with the OEO, one each in January 2019 and March 2019, regarding ongoing discrimination and retaliation following his return to work.
In March 2019, Mr. Arkorful took another leave of absence. In a form dated March 2, 2020, Mr. Arkorful requested an accommodation based on "depression-related low energy [and] reduced ability to concentrate[ ]/focus for sustained periods of time" as well as "trauma related anxiety secondary to workplace harassment/discrimination/retaliation." He requested a reduced workload of three days per week and transfer to a different department with different supervisors. Mr. Arkorful was informed that this request was denied as "not medically necessary" in July 2020; no one ever contacted him to discuss the accommodation. He requested re-evaluation of the request on July 30, 2020. On December 1, 2020, the request was granted. Mr. Arkorful returned to work on December 1, 2020, with a three-day workweek gradually increasing to full time, a new reporting line, and a work from home schedule that the rest of the department also had at that time.
E. Complaints Filed
Mr. Arkorful first filed a formal complaint with DOE's OEO in June 2016. On
December 28, 2016, Mr. Arkorful filed a complaint with the EEOC. Mr. Arkorful then filed a Notice of Claim with the New York City Department of Education (via service on the New York City Law Department) on February 15, 2017. On March 20, 2018, Plaintiff received a right to sue notice. He filed a second Notice of Claim with the City on May 10, 2018. On June 13, 2018, he filed the Complaint in the instant action. Subsequent to the filing of this lawsuit, in January and March 2019, Mr. Arkorful filed additional complaints with DOE's OEO.
Although the Complaint identifies May 10, 2018, as the only date this Notice was filed, an earlier Notice had previously been filed on February 15, 2017.
II. Summary Judgment Standard
A movant is entitled to summary judgment only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Only disputes relating to material facts — i.e., "facts that might affect the outcome of the suit under the governing law" — may preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is "'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The moving party bears the burden of demonstrating "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, "the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted).
The court must "construe all evidence in the light most favorable to the nonmoving party, drawing all inferences and resolving all ambiguities in its favor." Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010). But "[t]he mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. While "circumstantial evidence may be . . . sufficient to raise a genuine issue of material fact precluding the grant of summary judgment[,]" Gayle v. Gonyea, 313 F.3d 677, 684 (2d Cir. 2002), a party cannot survive a motion for summary judgment by relying on "mere speculation or conjecture as to the true nature of the facts," Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks omitted), and "must come forward with specific facts showing that there is a genuine issue for trial[.]" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (emphasis removed).
The Second Circuit "has repeatedly emphasized the need for caution about granting summary judgment to an employer in a discrimination case where, as here, the merits turn on a dispute as to the employer's intent." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (internal quotation marks omitted). Nevertheless, summary judgment is appropriately granted "if the evidence, viewed in the
light most favorable to the party against whom it was entered, demonstrates that there are no genuine issues of material fact, and that the judgment is warranted as a matter of law." Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (internal citation omitted).
III. Discussion
A. Whether Certain Claims are Time-Barred
1. The Title VII and ADA Claims are Not Time-Barred
For a Title VII or ADA claim to be timely, the plaintiff must file an administrative charge with the EEOC within 300 days of the alleged discriminatory act. See 42 U.S.C. §§ 2000e-5(e)(1) (Title VII), 12117(a) (ADA); Harris v. City of New York, 186 F.3d 243, 247, n.2 (2d Cir. 1999) (New York is a 300-day state). Mr. Arkorful filed his EEOC charge on December 20, 2016. Mr. Arkorful is therefore barred from bringing Title VII or ADA claims that accrued before February 24, 2016. As discussed below, Mr. Arkorful's discrimination claims arise out of two distinct events: Mr. Berger's reassignment as QA Team Lead, which Mr. Arkorful learned about on March 3, 2016, and Mr. Berger's receipt of resources, after he took on the Team Lead role, which Mr. Arkorful claims he had previously been denied. Mr. Arkorful could not have known that he suffered from the effects of discrimination prior to becoming aware that Mr. Berger subsequently received those desired resources, which necessarily occurred after March 3, 2016. See Heins v. Potter, 271 F. Supp. 2d 545, 555 (S.D.N.Y. 2003) (accrual occurs when plaintiff knew or had reason to know of injury serving as the basis for the claim). Since Mr. Arkorful does not presently assert Title VII and ADA claims that accrued before February 24, 2016, his claims are not time-barred.
Although Mr. Arkorful's Complaint can be read to assert claims that arose prior to February 24, 2016, he notes in his Opposition that the EEOC charge "was filed on December 20, 2016, and therefore covers all acts as far back as February 24, 2016[.]" Pl. Opp. at 8.
2. The NYSHRL and NYCHRL Claims Must Be Dismissed
Under New York law, a notice of claim must be filed "within three months after the accrual of such claim" to the proper governing body before any suit may be brought against DOE or its officers. See N.Y. Education Law § 3813(1). Failure to satisfy the requirements of § 3813 is fatal to a claim filed under state or city law, whether in state or federal court. See, e.g., Lewinter v. New York City Dep't of Educ., No. 09-CV-227 (PGG), 2010 WL 2746334 (S.D.N.Y. July 9, 2010).
Although the Complaint alleges only that a Notice of Claim was filed on May 10, 2018, Mr. Arkorful has presented evidence that a Notice of Claim was also filed on February 15, 2017. See supra n. 11. Neither of these Notices of Claim, however, meets the strict three-month time requirement established by the New York Education Law. The February 15, 2017, Notice of Claim includes only allegations of events that occurred on or before March 22, 2016, well outside of the three-month window for filing the Notice. The May 10, 2018, Notice of Claim covers claims that accrued after February 10, 2018, but Mr.
In his Opposition, Mr. Arkorful does not argue that he complied with § 3813(1) or dispute its applicability, but instead simply requests that the pleadings be amended to conform to the evidence that the first Notice of Claim was filed on February 15, 2017. Pl. Opp. at p. 9, n. 3. This request is granted, but doing so does not change the outcome.
Arkorful has not identified any claims arising between February 10, 2018 and May 10, 2018, and no subsequent Notice of Claim was ever filed for claims which arose after May 10, 2018. See Varsity Transit, Inc. v. Bd. of Educ. of City of New York, 5 N.Y.3d 532, 536, 806 N.Y.S.2d 457, 840 N.E.2d 569 (2005) (plaintiff must file a new notice of claim for subsequent allegations). Therefore, Mr. Arkorful's NYSHRL and NYCHRL claims must be dismissed.
To the extent any of the events relevant to Mr. Arkorful's retaliation claims continued to take place during this time period, they arose well before this date, as Mr. Arkorful returned from leave and allegedly was subject to retaliation in December 2017, and he has not adduced any evidence that the alleged instances of retaliation only began on or after February 10, 2018.
B. Discrimination Based on Disparate Treatment Under Title VII
Title VII prohibits employment discrimination against an individual on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2003e-3(b). The parties agree that discrimination claims under Title VII are to be analyzed under the long-established McDonnell-Douglas burden-shifting framework. The plaintiff must first establish a "prima facie" case of racial discrimination which creates a presumption that the employer unlawfully discriminated against the employee. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). At that point, the defendant faces the "burden of producing an explanation to rebut the prima facie case — i.e., the burden of producing evidence that the adverse employment actions were taken for a legitimate, nondiscriminatory reason." St. Mary's Honor Ctr., 509 U.S. at 506-07, 113 S.Ct. 2742 (internal citations omitted). If the defendant does so, then the plaintiff must establish "that the proffered reason was not the true reason for the employment decision, and that [a discriminatory motive] was" — that is, not merely that the defendant's alleged motive is a pretext, but that it is a pretext for discrimination. Id. at 508, 113 S.Ct. 2742 (internal citation omitted); see also Reeves, 530 U.S. at 146-49, 120 S.Ct. 2097. At all times, the ultimate burden of proof rests with the plaintiff.
The requirements for making out a plaintiff's prima facie case under the McDonnell-Douglas framework are "de minimis." Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998). A plaintiff must show: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the action occurred under circumstances giving rise to an inference of discrimination. See Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999). There is no dispute that Mr. Arkorful has met the first two elements but the parties disagree as to whether he has shown an adverse employment action or that any such action occurred in circumstances giving rise to an inference of discrimination.
1. Mr. Arkorful has Proffered Sufficient Evidence of Adverse Employment Actions
"The category of employment decisions that constitute adverse actions is 'broad' in scope." Banks v. Gen. Motors, LLC, 81 F.4th 242, 269 (2d Cir. 2023) (internal citation omitted). Such actions may include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished
material responsibilities, or other indices. . . unique to a particular situation[.]. . . [F]ailure to promote and internal transfers may also qualify as adverse actions." Id. (internal citations omitted). Critically, "no particular type of personnel action is automatically excluded from serving as the basis of a cause of action under Title VII, as long as the plaintiff is aggrieved by the action." Id. at 269-70. Here, Mr. Arkorful has raised a genuine dispute as to whether he suffered an adverse employment action by: 1) being stripped of a Team Lead title when Mr. Berger was assigned as QA Team Lead; and 2) being denied resources during his time managing the QA Team.
DOE argues that, "when the CTO's office was reorganized in March 2016, Plaintiff's salary remained the same; his Civil Service title remained the same; his benefits remained the same; and his material responsibilities were not 'significantly diminished' to the extent they changed at all." Def. Mem. at 7. This argument fails to include other bases on which an adverse employment action may be found, such as via an internal transfer as was done with Mr. Berger and Mr. Arkorful, or other indices unique to a particular situation. Here, Mr. Arkorful has adduced evidence that he had previously served in essentially the same role, Team Lead, to which Mr. Berger was assigned. For example, a 2015 Organizational Chart shows Mr. Arkorful with a Team Lead title, and he included "team lead" in his signature block in emails to his supervisors. Mr. Arkorful's former supervisor Mr. Davis testified that it "[w]ould be fair to say that [Mr. Arkorful] created the quality assurance department as it existed when Eric Berger took it over." Davis Dep. at 35:9-17.
Since a demotion can be evidenced by a less distinguished title, on the evidence in the record, a jury could reasonably conclude that Mr. Arkorful had previously held the title of Team Lead and that, when it was stripped from him, he suffered the adverse employment action of a demotion. See Carter v. Syracuse City Sch. Dist., 850 F. App'x 22, 26 (2d Cir. 2021). Even without identifying the specific type of adverse employment action taken, one can still be found to have occurred. See id.; see also Banks, 81 F.4th at 269-70. Here, a jury reasonably could conclude that exclusion from continuing to manage a department Mr. Arkorful created was an adverse employment action regardless of whether it is likened to a demotion, failure to promote, or another type of action.
Mr. Arkorful has also raised a genuine dispute of fact with regard to whether DOE gave him adequate resources to do his job as compared with the resources provided to Mr. Berger. There were times when Mr. Arkorful was working on QA entirely by himself, despite Mr. Iacoviello stating it was most likely not possible for one person to do all of the QA work. Although DOE contends he was permitted to assign tasks to staff outside of that team, Mr. Arkorful adduced evidence that on at least one occasion Mr. Diomede permitted other staff to opt-out of work he assigned. However, when Mr. Berger became Team Lead of QA, he was given four staff directly reporting to him to undertake that work. Mr. Arkorful has thus raised a genuine dispute of fact with respect to whether DOE failed to provide him with adequate staffing and resources to do his job such that he suffered an adverse employment action. See Branch v. State Univ. of New York, No. 18-CV-9516 (AT), 2020 WL 4057594, at *3 (S.D.N.Y. July 20, 2020) (adverse employment action existed when white predecessors and successor in the same role as African American plaintiff were given a staff member to help perform tasks but plaintiff was not,
resulting in his having additional responsibilities).
2. Mr. Arkorful Has Proffered Sufficient Evidence to Support an Inference of Race and National Origin Discrimination
The standard for proving an inference of discrimination is a "flexible one that can be satisfied differently in differing factual scenarios." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996). "No one particular type of proof is required[.]" Moore v. Kingsbrook Jewish Med. Ctr., No. 11-CV-3625 (MKB), 2013 WL 3968748, at *6 (E.D.N.Y. July 30, 2013) (citation omitted). An inference of discrimination can be drawn from circumstances such as "the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's [adverse employment action]." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (internal citations omitted). However, a plaintiff's "mere subjective belief that he was discriminated against because of his race does not sustain a race discrimination claim." Moore, 2013 WL 3968748, at *6 (internal citation omitted).
Here, Mr. Arkorful has raised an inference of race and national origin discrimination. His replacement as the QA Team Lead by a white male is sufficient, as "replacement by an employee of a different race or ethnic background can satisfy the plaintiff's minimal prima facie case for discrimination . . ." Singh v. Deutsche Bank Tr. Co. Americas, No. 04-CV-1861 (ERK) (RER), 2006 WL 8439717, at *5 (E.D.N.Y. Oct. 18, 2006).
And, when Mr. Arkorful asked Mr. Diomede why he was passed over for promotion, Mr. Diomede responded that "this is how we do things in America, and if you don't like it you can go to wherever you came from." Plaintiff EEOC Afft. dated July 10, 2017; see also Arkorful Dep. at 151:2-4. DOE's argument that this comment should be excluded because Mr. Arkorful's description of it changed over time is rejected. The substance has remained the same, and a jury could find Mr. Arkorful's testimony credible. DOE next argues that this comment is a "stray remark." However, as the Second Circuit has recognized, the stray remarks doctrine is by no means dispositive in employment discrimination cases, and it is incorrect to first categorize comments as stray or not stray and then disregard them if they fall into the stray category. See Banks, 81 F.4th at 266 (citing Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115-16 (2d Cir. 2007)). Where "other indicia of discrimination are properly presented, the remarks can no longer be deemed stray, and the jury has a right to conclude that they bear a more ominous significance." Abdu-Brisson, 239 F.3d at 468 (internal citations omitted). The offensive remark on its own, but especially when combined with its use as an explanation for why Mr. Arkorful was passed over for a role that went to a white man would allow a jury to infer race and national origin discrimination.
3. DOE Has Articulated a Legitimate, Non-Discriminatory Reason for its Decision
DOE has articulated a legitimate, nondiscriminatory reason for its decision to reassign Mr. Berger to the Team Lead role by identifying that it was part of a reorganization designed to maximize efficiencies. Mr. Berger was one of many individuals who were given new roles as part of this reorganization, and numerous emails and individuals' testimonies have evidenced that a reorganization for the
entire CTO office took place in March 2016. An employer is entitled to "reorganize its operations to maximize efficiencies[.]" Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1226 (2d Cir. 1994).
4. Mr. Arkorful Has Raised an Issue of Fact as to Whether DOE's Stated Reason is a Pretext for Discrimination
The remaining issue is whether Mr. Arkorful has proffered sufficient evidence to show that DOE's stated reason is a pretext for discrimination. Here, inconsistencies in connection with the process for reassigning Mr. Berger to the QA Team Lead role present evidence of pretext. See Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 430 (2d Cir. 2016) (plaintiff can meet his burden "by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate" reasons for its action). Mr. Arkorful has amassed numerous inconsistencies in DOE's actions. As an initial matter, individuals who made up the management team involved in the reorganization distanced themselves from the decision-making process when asked about it during depositions. Contradictions also exist with respect to when Mr. Berger was told of his reassignment. Mr. Diomede said he had no interaction with Mr. Berger prior to the reorganization, but the record contains an email from Mr. Arkorful that Mr. Diomede forwarded to Mr. Berger on January 20, 2016, discussing the ticketing backlog being down to 37 tickets. The email reads: "Eric, Just an FYI. Looks like we are starting to get a handle on QA. Not there yet!" Such a message demonstrates Mr. Berger was being included on QA-related activities as early as January 2016.
More importantly, it is implausible that Mr. Berger was a better fit for the role than Mr. Arkorful given that, by his own admission, Mr. Berger had no experience with QA work until he took on the position, and then he needed to be trained by Mr. Arkorful. Mr. Arkorful, on the other hand, has adduced a significant number of positive performance reviews by supervisors, including those involved in the decision to assign the Team Lead role to Mr. Berger. Mr. Arkorful not only had superior QA skills but also had experience managing team members based on his time supervising Mr. McComb and Mr. Lombardo beginning at the end of 2014, and doing project management. His former supervisor, Mr. Davis, called his work "exemplary," and even Mr. Iacoviello affirmed in a letter of recommendation that Mr. Arkorful had "successfully completed. . . challenging projects by leading and coordinating the efforts of his team." "[A]n employer's disregard or misjudgment of a plaintiff's job qualifications may undermine the credibility of an employer's stated justification for an employment decision, suggesting pretext." Zakre v. Norddeutsche Landesbank Girozentrale, 396 F. Supp. 2d 483, 509 (S.D.N.Y. 2005) (internal citations omitted). In sum, Mr. Arkorful has raised a triable issue of fact as to his and Mr. Berger's qualifications sufficient to show a reasonable jury that DOE's decision to place Mr. Berger in the position Mr. Arkorful had previously held was a pretext for discrimination against Mr. Arkorful.
Moreover, after Mr. Arkorful raised concerns with the assignment of Mr. Berger and complained about discrimination, Mr. Berger's Team Lead assignment was rescinded. Ms. Anaya said that, in wanting to give Mr. Berger the responsibility for leading the group, she "failed to realize that it stopped an opportunity for someone." Anaya Dep. at 190:18-191:2. Management agreed to post a job description for the role so that Mr. Arkorful could apply for it, but decided not to post it when he
was out on leave for an extended period of time. A jury could look at the decision to backtrack on the Team Lead assignment once discrimination was alleged as underscoring the possibility of pretext in the initial move.
Finally, a comment that attributes a plaintiff's professional setback to prejudice against a protected category can warrant a finding that legitimate actions were pretext for discrimination. In Carter, the plaintiff, a teacher, had complained to senior school officials about colleagues mistreating her. In response, her principal agreed that her colleagues were intimidated by her because she was a Black woman and stated that he was also intimidated by her. See Carter, 850 F. App'x at 27. In this case, Mr. Diomede's statement in response to Mr. Arkorful's concern about his treatment, that Mr. Arkorful could go back to wherever he came from, lends support to a finding of pretext for DOE's actions.
Because a reasonable jury could find not only that the grounds proffered were pretextual, but also that DOE discriminated against Plaintiff when it removed him from a leadership role in a team he built and replaced him with a less qualified individual of a different race, DOE's motion is denied on Mr. Arkorful's race and national origin discrimination claims.
To the extent that Mr. Arkorful contends that DOE violated the ADA on the basis that his disability was the cause of any adverse employment actions, such a claim fails as a matter of law. Although undisputed that Mr. Arkorful suffered a stroke in 2015 and was diagnosed with depression and anxiety, he has not offered evidence that disability was a but-for cause of any adverse employment actions, instead making only bare assertions. See Natofsky v. City of N.Y., 921 F.3d 337, 349 (2d Cir. 2019) (under the ADA discrimination must be the "but-for" cause of a defendant's employment decisions).
C. Failure to Accommodate Under the ADA
Mr. Arkorful contends that DOE violated the ADA by failing to provide a reasonable accommodation. See 42 U.S.C. § 12112(b)(5). To establish a prima facie case of failure to accommodate a disability a plaintiff is required to show that: (1) he is a person with a disability under the meaning of the ADA; (2) his employer is subject to the ADA and had notice of his disability; (3) with reasonable accommodation, he could perform the essential functions of the job at issue; and (4) his employer has refused to make such accommodation. See Natofsky v. City of N.Y., 921 F.3d 337, 352 (2d Cir. 2019).
There is no dispute as to the presence of the first three elements. With respect to the fourth, DOE argues that it has made requisite accommodations for Mr. Arkorful. Mr. Arkorful responds first that the flexibility in his scheduling that he was given following his stroke in 2015 was no longer given to him in March 2016 when Ms. Anaya emailed Mr. Davis to require a change in the way Mr. Arkorful's late time was being tracked. However, Mr. Arkorful does not adduce any evidence that the initial flexibility was requested or provided as a disability accommodation under the ADA.
Mr. Arkorful's argument that when he returned to work in December 2017, DOE failed to accommodate his disability and denied him the one-hour flextime band granted to him in 2014 is also meritless. As an initial matter, there is no evidence that the flextime provided to him in 2014 was requested or provided as a disability accommodation under the ADA. Notably, Mr. Arkorful was told in 2016 that his continued access to this flextime band would be dependent on a physician's note,
and Mr. Arkorful has not adduced evidence that such a request from a physician was made. Moreover, there is no dispute that Mr. Arkorful requested, and was granted, an accommodation following his return from leave in the form of a gradually increasing work schedule from 12 hours per week, to 20 hours per week, and finally up to 35 hours per week. Mr. Arkorful continued to have access to the flextime band when he began working a full schedule again. It was only when he was working four hours a day that he did not have an additional flextime band accommodation on top of his gradually increasing work schedule accommodation, the latter of which was the only accommodation requested by his physician upon his return from leave. Under these circumstances, no reasonable juror could conclude that the decision of DOE not to provide an additional accommodation of a one-hour flextime band when he was working only four hours a day was unreasonable.
In contrast, Mr. Arkorful's next argument, that DOE failed to accommodate him when it initially denied his March 2, 2020, accommodation request, has merit. There is no dispute that, although the requested accommodation was ultimately granted, it was initially denied. Mr. Arkorful has adduced evidence that it was denied on June 8, 2020, that he was informed of the denial in July 2020, and that no one ever contacted him to discuss the accommodation before it was denied. He reapplied for this accommodation on July 30, 2020, on the same grounds — depression and anxiety, with supporting medical documentation — and it was granted on December 1, 2020.
Because DOE ultimately granted the requested accommodation, there is no dispute between the parties that Mr. Arkorful was a person with a disability, that DOE had notice of the disability, or that Mr. Arkorful could perform the essential functions of the job at issue. Moreover, the evidence supports Mr. Arkorful's position that DOE refused to make an accommodation it later determined was feasible. Although nothing in the record indicates the date upon which Mr. Arkorful hoped to return to work, it is reasonable to infer that he submitted an accommodation request in March 2020 because he hoped to return in March or shortly thereafter, not nine months later in December 2020. Therefore, he has produced sufficient evidence that he was prevented from working, for lack of a reasonable accommodation, for some period of time between March and December 2020. In sum, Mr. Arkorful has raised a genuine dispute of fact as to whether the refusal to accommodate him earlier in 2020 directly led to his being denied work for part of that year.
In his Complaint, Mr. Arkorful also alleges DOE's failure to accommodate him following his March 2015 stroke, ¶¶ 17-18. Mr. Arkorful does not raise this claim in his Opposition, undoubtedly because any such claim would be time-barred as it occurred prior to February 24, 2016.
D. Retaliation
Under Title VII, it is unlawful for an employer to take adverse action against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Similarly, the ADA prohibits retaliation "against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge . . . in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). On a motion for summary judgment, retaliation claims under each statute are evaluated under the McDonnell-Douglas burden-shifting framework. To make out a prima facie case of retaliation under either requires plaintiff to demonstrate (1) that he engaged in protected activity under the relevant statute; (2) that DOE as employer was aware of the activity; (3) that he suffered a materially adverse action; and (4) that there is a causal connection between the protected activity and the alleged adverse action. See, e.g., Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (Title VII); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (ADA). To meet the third prong, he must show that "a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (internal quotations omitted). With respect to the fourth prong, although retaliation must be a "but-for" cause of the employer's adverse action, Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015), it need not be the only but-for cause. Bostock v. Clayton County, Georgia, 590 U.S. 644, 140 S. Ct. 1731, 1739, 207 L.Ed.2d 218 (2020) ("When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the [protected characteristic] was one but-for cause of that decision, that is enough to trigger the law."). "[A] plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action." Gorzynski, 596 F.3d at 110 (2d Cir. 2010) (internal citation omitted).
Mr. Arkorful opposes DOE's motion for summary judgment on his retaliation claims on the basis of events that transpired following: 1) his March 2016 complaint to Mr. Kambouras; 2) his 2016 filing of an OEO complaint and a meeting with an OEO investigator; 3) his 2019 filing of OEO complaints; and 4) his return from leave at the end of 2017.
1. Title VII Retaliation
a. March 2016 Complaint to Mr. Kambouras
Mr. Arkorful has adduced evidence that he engaged in protected activity when he met on March 17, 2016, with Mr. Kambouras about being stripped of his Team Lead position. For Title VII retaliation claims, protected activity can include "informal protests of discriminatory employment practices, including making complaints to management" provided that they are "sufficiently specific to make it clear that the employee is complaining about conduct prohibited by Title VII." Risco v. McHugh, 868 F. Supp. 2d 75, 110 (S.D.N.Y. 2012). Mr. Arkorful complained that, because he was Black and from Ghana, he was being treated differently from coworkers. Such allegations are "[p]lainly" challenging employment practices that, if proven, were unlawful under Title VII. Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 210 (2d Cir. 2006). As such, a reasonable jury could conclude this was protected activity. Mr. Kambouras was part of the meeting, so knew it was taking place.
According to Mr. Arkorful, five days after this meeting, Ms. Anaya directed his supervisor, Mr. Davis, to begin marking him late in a manner different from how his attendance had previously
been tracked. (Prior to this direction, he had been entitled to have lateness resulting from transit delays deducted from annual leave, which was not a mark against his performance.) Mr. Arkorful was instructed that, following this direction, such lateness would result in him being marked as late in DOE's attendance system, which could contribute to a negative record. Mr. Arkorful contends that this change was different from how others were treated. See Davis Dep. at 25:22-24 (Mr. Davis testified that Mr. Arkorful was not the only one who took annual leave against lateness). This change could be found sufficient to dissuade a reasonable worker from making a charge of discrimination. Moreover, the new directive came only five days after his discrimination complaint, demonstrating a close temporal relationship between the protected activity and adverse action.
DOE contends that the new direction was made pursuant to DOE policy. However, if credited by a jury, Mr. Davis's testimony that he was specifically told to monitor Mr. Arkorful's attendance but refused to do so because he thought it was a "tactic" to create a negative record that "could probably be used to either get him fired or prevent him from being promoted" supports the conclusion that any legitimate basis offered by DOE is pretextual. Davis Dep. at 26:2-18. Summary judgment is denied on this claim.
b. 2016 OEO Complaint
Mr. Arkorful met with an OEO investigator following his filing of an OEO Complaint, which was dated June 24, 2016. According to Mr. Arkorful's testimony, the investigator met with him for five minutes or less, did not help at all, and threatened to tell Mr. Arkorful's manager that he was saying the manager was a racist. See Arkorful Dep. at 163:1-25-164:1-12. There is no dispute that filing an OEO Complaint is a protected activity, nor that the employer was aware of the activity. A threat to inform someone's manager that his employee is saying negative things about him, could easily "dissuade[ ] a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68, 126 S.Ct. 2405. Finally, this statement was made less than five minutes into an OEO meeting about Mr. Arkorful's discrimination complaint, so there is temporal proximity and no reasonable dispute as to the cause of the threat. Mr. Arkorful has therefore established a prima facie case, and DOE has offered no legitimate, non-discriminatory reason for the adverse action. Summary judgment is denied on this claim.
c. 2019 OEO Complaints
Mr. Arkorful also brings a retaliation claim based on DOE's failure to investigate his 2019 OEO complaints following his December 2016 EEOC complaint and the filing of the instant lawsuit. As OEO is a DOE entity, Mr. Arkorful's employer necessarily was aware of these filings, which constitute protected activities. Failure to investigate a complaint can constitute an adverse employment action for purposes of a retaliation claim if the complaint is distinct from another separate, protected activity. See Delisi v. Nat'l Ass'n. of Professional Women, Inc., 48 F. Supp. 3d 492, 497 (E.D.N.Y. 2014). That is the case here.
Mr. Arkorful has proffered evidence that, in response to his January 2019 OEO complaint, OEO informed him that "[t]here is a case against DOE that you filed with EEOC and therefore we cannot pursue an internal investigation at the OEO. Unfortunately the Office of Equal Opportunity is not able to investigate any complaints that are filed at external agencies." OEO closed his March 2019 Complaint because it
"closed [his] prior complaints (which match this one) because similar acts of retaliation were alleged in the lawsuit and OEO will close the instant case as a duplicate," even though the 2019 OEO Complaints contained allegations of subsequent discriminatory conduct that took place after the filing of the EEOC complaint and the filing of this lawsuit.
DOE does not offer a legitimate, non-discriminatory reason for the decision not to investigate the complaints or explain the purported OEO policy cited in the email. It argues only that Mr. Arkorful did not provide evidence that retaliation was the but-for cause of this act. However, the correspondence from OEO itself directly connects its decision to close and not pursue these complaints to the existence of an EEOC complaint. In sum, a reasonable jury could find that the failure to investigate the 2019 OEO complaints was in retaliation for his filing of the EEOC complaint and this lawsuit.
Summary judgment is denied on Mr. Arkorful's Title VII retaliation claims.
2. ADA Retaliation
Mr. Arkorful also argues that DOE "further retaliated against [him] after he returned from his leave." Pl. Opp. at 24. Mr. Arkorful's prima facie case fails on the first element. He has not made a cognizable ADA retaliation claim because he offers no evidence that any adverse employment action from which he suffered was a result of activity aimed at opposing ADA discrimination.
The protected activity he asserts as giving rise to this claim appears to be his taking of a leave of absence under the FMLA and pursuant to DOE policy in 2016-2017. While seeking reasonable accommodation for a disability can constitute protected activity under the ADA, Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 149 (2d Cir. 2002), "[a] request for FMLA leave, without more, cannot constitute a protected activity for the purposes of an ADA retaliation claim." Kastrati v. Progress of Peoples Mgmt. Corp., No. 18-CV-6731 (LDH) (LB), 2020 WL 6940991, at *5 (E.D.N.Y. Nov. 24, 2020); see also Brizzi v. Utica Mut. Ins. Co., 529 F. Supp. 3d 44, 56 (E.D.N.Y. 2021) (short-term disability leave for cancer treatment does not constitute a protected activity to make out a prima facie retaliation case under ADA). There is no dispute that Mr. Arkorful took leave pursuant to the FMLA and DOE policy; he has offered no evidence that any portion of this leave was taken pursuant to the ADA. See Pl. Rep. to Rule 56.1 Statement ¶¶ 43, 49 (Mr. Arkorful took leave "as he was entitled pursuant to the [FMLA], and policy that applied to all employees with his tenure and service"); see also supra n. 6. Thus, any retaliation claim brought under the ADA based on Mr. Arkorful's return from leave in 2017 fails as a matter of law.
E. Title VII and ADA Hostile Work Environment Claims Have Been Abandoned
For the following reasons, I conclude that Mr. Arkorful has abandoned any hostile work environment claims and that DOE is therefore entitled to summary judgment on those claims.
As a preliminary matter, in reaching this conclusion, I consider that the legal standards for a hostile work environment claim under either Title VII or the ADA are entirely distinct from the standards for a discrimination claim or a retaliation claim under either of those statutes. To succeed on a hostile work environment claim, a plaintiff must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult" "that is sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working environment[.]" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotations and citations omitted); see Fox v. Costco Wholesale Corp., 918 F.3d 65, 69, 74 (2d Cir. 2019) (analyzing hostile work environment claims under the ADA like such claims brought under Title VII).
"As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (internal quotations and citations omitted). While isolated incidents of harassment ordinarily do not rise to this level, the Second Circuit has recognized that "a single act can create a hostile work environment if it in fact 'works a transformation of the plaintiff's workplace.'" Banks, 81 F.4th at 262 (quoting Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004)). A plaintiff bringing a hostile work environment claim under the ADA must likewise "demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of [his] working environment." Fox, 918 F.3d at 74 (internal quotations omitted).
A hostile work environment claim has both objective and subjective elements, the ultimate question being whether "a reasonable person would have found [the work environment] to be [hostile], and if the plaintiff subjectively so perceived it." Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir. 2004). Whether a reasonable person would find a given work environment to be hostile depends on the totality of the circumstances, including "(1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee's work performance." Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 319 (2d Cir. 1999) (citing Harris, 510 U.S. at 23, 114 S.Ct. 367). A plaintiff must also show that there is a basis for imputing the conduct that created the hostile environment to the employer. See Serrano v. New York State Dep't of Env't Conservation, 714 F. App'x 90, 91 (2d Cir. 2018). When harassment is perpetrated by the plaintiff's coworkers, an employer will be liable if the plaintiff demonstrates that "the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997).
Finally, a hostile work environment under Title VII or the ADA requires a plaintiff to show that the complained-of conduct "creates such an environment because of the plaintiff's [membership in a protected class]." Goins v. Bridgeport Hosp., 555 F. App'x 70, 71-72 (2d Cir. 2014) (race); see also Dollinger v. New York State Ins. Fund, 726 F. App'x 828, 831 (2d Cir. 2018) (disability under ADA).
In arguing that any hostile work environment claim should be dismissed on summary judgment, DOE did not dispute that Mr. Arkorful subjectively believed the work environment to be hostile. Rather, DOE argued, in a distinct "hostile work environment" section of its Memorandum, that no reasonable juror could conclude that Mr. Arkorful's work environment was objectively hostile. See Def. Mem. at 20-23. DOE set forth factual assertions which it posited were the bases for Mr. Arkorful's hostile work environment claims. DOE then set forth the applicable legal standards for a finding of hostile work environment and argued that the claims should be dismissed because 1) the instances of conduct
alleged by Mr. Arkorful do not meet the pervasiveness requirement; 2) none of the acts described meet the severity threshold; and 3) the conduct alleged cannot be linked to Mr. Arkorful's protected classes.
In his Opposition, Mr. Arkorful does not address his hostile work environment claims in any manner. He does not contest either the legal or factual arguments raised by DOE. Nor does he identify any evidence in the record he asks the court to consider as supporting a hostile work environment.
"Where, as here, a counseled nonmoving party submits 'a partial response arguing that summary judgment should be denied as to some claims while not mentioning others,' that response 'may be deemed an abandonment of the unmentioned claims.'" Camarda v. Selover, 673 F. App'x 26, 30 (2d Cir. 2016) (quoting Jackson v. Federal Express, 766 F.3d 189, 195 (2d Cir. 2014)). Indeed, a court "generally will" deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed. Banyan v. Sikorski, et al., No. 17-CV-4942 (LJL), 2021 WL 2156226, at *2 (S.D.N.Y. May 27, 2021) (internal citations omitted).
In Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128 (2d Cir. 2016), the Second Circuit addressed a situation nearly identical to that presented here, and it found hostile work environment claims to have been abandoned when defendant "moved for summary judgment on all claims, and [plaintiff] opposed the motion with respect to all but the purported hostile-work-environment claims." Id. at 144. It noted that, in response to a motion for summary judgment, the plaintiff had filed a brief in opposition but
failed to support or even address purported hostile-work-environment claims. In fact, the argument section of the brief specifically enumerates [plaintiff's] claims and argues extensively why each should survive summary judgment, but the brief is bereft of any mention of the purported hostile-work-environment claims, let alone argument why these claims should survive summary judgment.
Id. at 143-44. Likewise, here, despite the thorough manner in which Mr. Arkorful addressed DOE's request for summary judgment on other claims, the words "hostile work environment" do not even appear in Mr. Arkorful's Opposition or the evidence he provides in his Response to Defendant's Local Rule 56.1 Statement. See Banyan, 2021 WL 2156226, at *3 (nothing in plaintiff's brief in opposition, outside the caption, mentioned the name of the defendant against whom claims had been determined by the court to be abandoned). In sum, his Opposition makes no effort whatsoever to explain why the factual events that Mr. Arkorful experienced during his tenure at DOE rise to the level of a hostile work environment under the relevant legal standards.
Counsel for Mr. Arkorful contended during oral argument that the hostile work environment claims were not abandoned for two reasons. One was that these claims arise under the same anti-discrimination provisions of Title VII and the ADA as the disparate treatment claims he brings. While this is true, hostile work environment claims require specific showings, as just described. I therefore reject the proposition that I should infer that claims with their own unique legal standards are being made simply on the basis that other claims derived from the same statute are expressly made.
Counsel's second argument was that these claims were not abandoned because
there are facts in the record supporting his other claims that also give rise to hostile work environment claims. While Mr. Arkorful's Local Rule 56.1 response does put forth facts (that may or may not support a hostile work environment claim), it makes no reference to which facts support such a claim, or even mention a hostile work environment. Put another way, Mr. Arkorful never made an effort to connect any particular facts in the record to a hostile work environment claim or attempt to show how the facts meet the legal standards required for a hostile work environment claim. As recently stated in the Banyan case,
it is not the Court's role, on a motion for summary judgment, independently to scour the record to locate factual material that could support a finding that genuine issues of material fact remain. After the moving party argues that no genuine issue of material facts exists, it is the obligation of the party opposing summary judgment to show, based upon the record, the existence of genuine issues of fact and to identify why they are material with respect to the claims on which the moving party seeks summary judgment.
Banyan, 2021 WL 2156226, at *3 (emphasis added) (declining to reconsider a decision that claims were abandoned even when plaintiff pointed to facts in the record that he claimed demonstrated the existence of genuine issues of material fact). As in Banyan, here, plaintiff is counseled and had the opportunity to pursue his claims of hostile work environment but chose not to do so. See id., at *4. Having failed to present any argument as to how the facts presented by DOE, or any others in the record, would give rise to a hostile work environment claim, Mr. Arkorful deprived DOE of an opportunity to study those arguments and respond and cannot now proceed with them to trial. DOE is entitled to summary judgment on the abandoned claims.
IV. Conclusion
For the reasons set forth above, Defendant's motion for summary judgment is granted as to Plaintiff's hostile work environment claims, NYSHRL claims, and NYCHRL claims. The motion is also granted as to Plaintiff's ADA claims, except for the failure to accommodate claim based on the March 2020 accommodation request, as to which it is denied. The motion is also denied as to the Title VII race and national origin discrimination and retaliation claims. The parties are directed to prepare a pre-trial order under the supervision of Magistrate Judge Tiscione.
SO ORDERED.