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finding no causation where one year elapsed between protected activity and adverse action
Summary of this case from Pathania v. Metro. Museum of ArtOpinion
98 CV 6446 (SJ).
August 24, 2004
MICHAEL G. O'NEILL, ESQ., New York, NY, Attorney for Plaintiff.
McCARTER ENGLISH, LLP, Four Gateway Center, Newark, NJ, By: Adam N. Saravay, Esq., Attorneys for Defendant.
MEMORANDUM AND ORDER
Plaintiff Michael Butler ("Butler" or "Plaintiff") filed the present action against his former employer, Raytel Medical Corporation ("Raytel" or "Defendant"), alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act ("ADEA"), and the New York State Human Rights Law ("NYHRL"). Plaintiff also alleges that Defendants breached a written employment contract with Plaintiff. Currently before this Court is Defendant's motion for summary judgment. For the reasons stated herein, Defendant's motion is GRANTED.
DISCUSSION
In his opposition brief, Plaintiff states that he "no longer asserts claims based on age discrimination or breach of contract. Accordingly, plaintiff does not oppose that branch of defendant's motion directed to those such claims." (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") at 4.) The Court therefore dismisses these claims.
Additionally, Plaintiff's opposition papers make no attempt to dispute any of the evidence presented by Defendant in its motion for summary judgment with respect to Plaintiff's race-based disparate treatment claims. Thus, the Court deems Plaintiff's race-based disparate treatment claims in his complaint to be abandoned, and grants Defendant summary judgment dismissing these claims. See, e.g., Douglas v. Victor Capital Group, 21 F. Supp. 2d 379, 393 (S.D.N.Y. 1998) (deeming plaintiff's claims to be "abandoned" after plaintiff failed to oppose defendants' summary judgment motion specifically addressing those claims);Singleton v. City of Newburgh, 1 F. Supp. 2d 306, 312 (S.D.N.Y. 1998) (same); Anti-Monopoly, Inc., v. Hasbro, Inc., 958 F. Supp. 895, 907 n. 11 (S.D.N.Y. 1997) ("the failure to provide argument on a point at issue constitutes abandonment of the issue"), aff'd, 130 F.3d 1101 (2d Cir. 1997); petition for cert. filed, 66 USLW 3759 (April 1, 1998).
I. Summary Judgment Standard
A moving party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden is on the movant to establish the absence of any genuine issue of material fact.Celotex Corp., 477 U.S. at 323; see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
Once the movant has made a properly supported motion for summary judgment, the burden shifts to the nonmoving party to present "significantly probative" supporting evidence showing that there is a material factual issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must view the underlying facts in the light most favorable to the plaintiff, resolving all ambiguities and drawing all inferences in his favor. See Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). Summary judgment should be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322; see also Sim v. New York Mailers' Union No. 6, 166 F.3d 465, 469 (2d Cir. 1999).
II. Plaintiff's Request to Add Additional Grounds for Relief
In his opposition brief, Plaintiff "requests that the pleadings be deemed to [also] include 42 U.S.C. § 1981 and Section 8 of the Administrative Code of the City of New York." (Pl.'s Opp'n at 4.) Plaintiff's request is untimely, not supported by good cause, and will prejudice Defendant.
First, "plaintiff has failed to make a proper motion to amend; it is not enough to mention in a memorandum of law that one would like to amend the complaint." Levy v. Alfano, 47 F. Supp. 2d 488, 498 (S.D.N.Y. 1999). Second, Magistrate Chrien ordered on September 29, 2000 that any amendments to pleadings were to be filed by November 1, 2000. Plaintiff's request was made on November 12, 2002, more than two years after Magistrate Chrien's order. Finally, even if this Court were to apply the more liberal standard of Rule 15(a) of the Federal Rules of Civil Procedure, it still "has discretion to deny leave to amend complaint where motion is made after inordinate delay, no satisfactory explanation is offered for delay, and amendment would prejudice other parties." Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000) (citations omitted). "One of the most important considerations in determining whether amendment would be prejudicial is the degree to which it would delay the final disposition of the action."Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998) (citations omitted). A proposed amendment to a complaint is "especially prejudicial . . . [when] discovery ha[s] already been completed and [the movant] ha[s] already filed a motion for summary judgment." Id. (citation omitted). Because Plaintiff's request was made after a two year delay, discovery on this case is complete, and Defendant has already filed a motion for summary judgment, his request is denied.
III. Unlawful Retaliation
Plaintiff contends that on two occasions prior to his termination, he complained to Defendant of unlawful discriminatory treatment by Diane Coleman ("Coleman"), the manager of Defendant's Cardiac Event Detection Services ("CEDS") unit, in which Plaintiff was employed. In his deposition, Plaintiff described verbal complaints he made in late 1996 or early 1997 to Dierdra Telesford ("Telesford") and Dennis Conroy ("Conroy"), both representatives of Defendant's Human Resources Department, and written complaints he voiced in an opinion survey distributed to Raytel employees in the fall of 1997. (Butler Tr. at 61, 97-104; Butler Decl. ¶ 4.) Plaintiff's opposition brief alleges that his discharge was in retaliation for his criticism of Coleman's "discriminatory employment practices." (Pl.'s Opp'n at 10.)
Both Title VII and NYHRL prohibit the discharge of employees in retaliation for their opposition to discriminatory employment practices. See 42 U.S.C. § 2000e-3(a); N.Y. Exec. L. § 296(1)(e) (McKinney 2004); Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992); Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1177 (2d Cir. 1996). In addition to protecting plaintiffs who have filed formal charges of discrimination with an administrative agency or through a lawsuit, Title VII and NYHRL protect plaintiffs who have filed informal internal complaints of discrimination with management.See 42 U.S.C. § 2000e-3(a); N.Y. Exec. L. § 296(1)(e);Kotcher, 957 F.2d at 65; Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990).
In order to make out a prima facie case of unlawful retaliation under Title VII, a plaintiff must prove that: (1) he was engaged in a protected activity by opposing a practice made unlawful by Title VII; (2) the defendant knew of the protected activity; (3) he was subject to an adverse employment action; and (4) a causal connection exists between plaintiff's protected activity and the adverse employment action. See Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998); Gordon v. New York City Bd. of Educ., 232 F.3d 111, 113 (2d Cir. 2000). To prove that he was engaged in "protected activity," a plaintiff must prove that he had a "good faith, reasonable belief that the employer had violated Title VII" or NYHRL. Dean v. Westchester County Dist. Attorney's Office, 119 F. Supp. 2d 424, 432 (S.D.N.Y. 2000); Sumner, 899 F.2d at 209; Manoharan v. Columbia Univ. Coll. of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988).
It is undisputed that the second and third prongs of the prima facie test are satisfied here. Defendant was aware of Plaintiff's verbal and written complaints, since these complaints were made directly to Raytel administrators, and Plaintiff's termination constituted an adverse employment action.
A. Opinion Survey Response
The Court finds that, with respect to the opinion survey he completed in the fall of 1997, Plaintiff has failed to show he was engaged in the protected activity of opposing an unlawful employment practice. At his deposition, Plaintiff described the content of his survey responses:
Neither Plaintiff nor Defendant retained a copy of Plaintiff's survey response. Defendant states that this document was "discarded as part of a file clean-up that took place approximately between June and October, 1998." (O'Neill Decl., Ex. C at 3.) Plaintiff, in turn, argues that "the disappearance of relevant evidence during the pendency of litigation gives rise to an adverse inference sufficient to defeat a motion for summary judgment." (Pl.'s Opp'n at 21 (citing Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001).)
Plaintiff's reliance on Byrnie is misplaced. Byrnie states that "[i]n borderline cases, an inference of spoliation [defined as "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation"], in combination with some (not insubstantial) evidence for the plaintiff's cause of action, can allow the plaintiff to survive summary judgment. Byrnie, 243 F.3d at 107 (citations and internal quotations omitted) (emphasis added). In this case, Plaintiff has not offered substantial evidence in support of his retaliation claim. This is far from a "borderline case" which could be "push[ed] over the line" by a showing of spoilation.Id. Accordingly, the fact that Defendant disposed of the survey response during the pendency of this litigation does not give rise to an adverse inference sufficient to defeat the summary judgment motion.
Q: What did you write?
A: I wrote how we had pay limitations. We had — our environment was pretty much demoralizing, how they seem to circumvent the rules. We saw others who were promoted to levels and they did not, you know, meet the muster. . . . They were the major ones that said I will get the position, I will be a major ass kisser or something like that.
Q: Do you remember your specific words?
A: No.
* * * *
A: I remember mentioning Diane [Coleman's] name directly in my critique. I pretty much said that her way of — I pretty much mentioned her name. I pointed out the nepotism, all the things she had done.
Q: Can you be more specific than that?
A: Not at this moment, no.
(Butler Tr. at 46-47.)
Q: . . . I want to get back to the opinion survey. . . . Other than what you have already testified to, can you be more specific about what you stated in that survey?
A: At the moment, no.
(Butler Tr. at 61.)
As Defendant highlights, "[c]onspicuously absent from Plaintiff's deposition testimony regarding his survey response is any mention of race or racial discrimination." (Def.'s Reply Mem. in Further Supp. of Def.'s Mot. for Summ. Judg. ("Def.'s Reply") at 4.) Because Plaintiff has not demonstrated that in responding to the survey, he was engaged in an activity protected by Title VII, he has failed to make a prima facie showing of retaliation.
Plaintiff filed a declaration in which he stated: "in completing the survey, . . . I accused Coleman of discriminating against minorities. . . . I am sure I expressed concerns such as how could minorities have any confidence that they could be treated fairly by this person or that it was possible to approach the company in a meaningful way . . ." (Butler Decl. ¶ 12.) In his deposition, Plaintiff said he complained in the survey only about pay limitations, a demoralizing environment, nepotism, and sycophants in the workplace — not once did he mention discrimination against minorities, even after being repeatedly asked by opposing counsel to "specifically" describe what he stated in the survey. (Butler Tr. at 46-47, 61.)
Under the "sham affidavit rule," a plaintiff cannot submit a declaration which contradicts his own prior deposition testimony.See Palazzo ex rel Delmage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000) ("[I]n opposing summary judgment, a party who has testified to a given fact in his deposition cannot create a triable issue merely by submitting an affidavit denying the fact"); Torrico v. Int'l Bus. Machs. Corp., 319 F. Supp. 2d 390, 394 n. 2 (S.D.N.Y. 2004); Perma Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). This rule does not apply in two situations: "first, where the subsequent sworn statement either does not actually contradict the affiant's prior testimony or addresses an issue that was not, or was not thoroughly, explored in the deposition, and second, where that testimony is contradicted by evidence other than the deponent's subsequent affidavit, for when such other evidence is available, the concern that the proffered issue of fact is a mere `sham' is alleviated." Torrico, 319 F. Supp. 2d at 394 n. 2 (citations and internal quotations omitted). This Court will not consider Plaintiff's Declaration because (1) the statement contradicts Plaintiff's prior testimony, (2) the issue of race discrimination was thoroughly explored in the deposition, and (3) no other evidence has been offered that contradicts Plaintiff's deposition.
B. Verbal Complaints to Human Resources Department
With respect to Plaintiff's verbal complaints about Coleman's behavior to Telesford and Conroy, Plaintiff offered the following testimony:
Q: Did you complain about racial discrimination to Mrs. Telesford?
A: I called it favoritism. My euphemism for discriminatory, not to be harsh, which led to a meeting with Dennis Conroy, which led to the meeting with other employees, which led to the survey.
* * * *
Q: What did you tell Mrs. Telesford specifically?
A: I can't remember specifically, but it's just basically the things I have alleged here. Not going with the program. Why is it that if you are minority, especially black male, why do we feel the way we do or get this kind of a harsh treatment.
* * * *
Q: You asked [Mrs. Telesford] why black males —
A: Not asked her why. I said why the feeling, the general atmosphere, trying to give her a sense of how we feel working under her administration, Mrs. Coleman's administration.
* * * *
Q: Are there any other instances where you complained to human resources about what you believe to be unlawful employment practices?
A: Well, I just remember that Dennis Conroy had to come out of his way, who is head of human resources, and he spent the time with the most employees to hear what we have to say."
(Butler Tr. at 97-98, 100-01.)
Although Plaintiff's deposition testimony is somewhat unclear, Plaintiff has demonstrated that he believed in good faith that Coleman's behavior toward him amounted to an unlawful employment practice, and that he communicated this belief to Telesford. Plaintiff has not, however, demonstrated that this belief was reasonable. In his deposition, Plaintiff put forward little, if any, evidence of Coleman's racial animus. When Plaintiff even mentioned race, he spoke in vague terms and could not give details about what he alleged were discriminatory acts. (See Butler Tr. at 48, 50-52, 61-62, 64, 65, 70-73, 77-81, 83-85, 123-24, 159-60.) Indeed, it is difficult to say whether Plaintiff reasonably believed that Coleman discriminated against him because he was African American. In any event, even if this Court were to find that Plaintiff's belief was reasonable, and thus that he was engaged in a protected activity, Plaintiff's retaliation claim would still be dismissed on summary judgment, since, as discussed infra, he has not satisfied the fourth prong of the prima facie test.
In order to meet the fourth prong of the prima facie test, Plaintiff must demonstrate a causal link between his protected behavior and the alleged retaliation. See Hawana v. City of New York, 230 F. Supp. 2d 518, 530 (S.D.N.Y. 2002). In this case, Plaintiff only mentioned race to Telesford in a conclusory statement unsupported by the record (". . . if you are minority, especially black male, why do we feel the way we do or get this kind of a harsh treatment . . ." (Butler Tr. at 98)). See Farias v. Instructional Sys., Inc., 259 F.3d 91, 99 (2d Cir 2001). Thus, Plaintiff has not put forth any evidence that he was terminated in retaliation for his complaints to Telesford and Conroy.
Without direct evidence of a causal relationship, Plaintiff could still show a causal link "by demonstrating that there was a short time lapse between the protected activity and the alleged retaliation." Id. (citing Cifra v. Gen. Elec. Co., 252 F.3d 205, 217-18 (2d Cir. 2001) (finding a genuine issue of material fact precluding summary judgment when only twenty days elapsed between the time that the defendant learned that the plaintiff had hired an attorney to pursue gender discrimination claims against the defendant and when she was terminated); Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (finding a causal connection where only twelve days separated the protected activity from the adverse employment action)). No bright line rule exists as to "when the temporal link becomes too attenuated to demonstrate causation." Hawana, 230 F. Supp. 2d at 530 (citation omitted).
"In a causation analysis, the Court must look to when the defendant first became aware of the plaintiff's protected behavior." Id. (citing Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001)). In this case, the time period between Plaintiff's complaints and his termination was significantly longer than that described in Cifra and Reed. Plaintiff made verbal complaints to Telesford and Conroy between late 1996 and early 1997 — at least one year prior to Plaintiff's February 1998 discharge. Such an extended period of time is "too attenuated to suggest any causal relationship." Hawana, 230 F. Supp. 2d at 530.
In fact, courts have declined to draw an inference of retaliation when faced with even shorter gaps of time between the protected activity and an adverse action. See, e.g. Hollander v. American Cyanamid Co., 895 F.2d 80, 86 (2d Cir. 1990) (finding that even where gap was three months, summary judgment was appropriate because of lack of evidence of causal nexus between termination and age discrimination complaint); Donlon v. Group Health, Inc., No. 00 Civ. 2190, 2001 WL 111220, at *3 (S.D.N.Y. Feb. 8, 2001) (eight and one-half month gap); Lapsley v. Columbia Univ. Coll. of Physicians Surgeons, 999 F. Supp. 506, 525 (S.D.N.Y. 1998) (gap of almost one year).
Because Plaintiff has failed to make a prima facie case of unlawful retaliation under Title VII, Defendant is entitled to summary judgment on Plaintiff's unlawful retaliation claim.
CONCLUSION
For the reasons stated herein, Defendant's motion for summary judgment is GRANTED in its entirety. The Clerk of the Court is directed to close this case.
SO ORDERED.