Opinion
No. 02 Civ. 3482 (LAK).
September 24, 2004
ORDER
This employment discrimination case is a sequel to Evans v. Port Authority of New York New Jersey (" Evans I"), which covered an earlier time period. Some of plaintiff's claims in Evans I were dismissed on a motion for summary judgment. The trial resulted in a jury verdict for the defendants. Plaintiff's post-trial motions were denied. His appeal was dismissed. The Court assumes familiarity with these and other decisions rendered in Evans I. This matter now is before the Court on defendant's motion for summary judgment dismissing the complaint.
00 Civ. 5753 (LAK).
Id. 192 F. Supp.2d 247 (S.D.N.Y. 2002).
Id. 246 F.Supp.2d 343 (S.D.N.Y. 2003).
The amended complaint, to the extent it involves events subsequent to the time period at issue in Evans I, makes essentially three claims. The first is that plaintiff was placed on absent without leave ("AWOL") status in 2002 in retaliation for prior complaints of discrimination. Second, he contends that the Port Authority did not consider him in 2003 for four positions, again in retaliation for his past activities. Finally, he maintains that he was subjected to a hostile work the foregoing respects as well as the alleged failure to give him non-competitive mobility assignments and anniversary awards and properly to investigate his complaints. It should be mentioned also that the amended complaint in some instances seeks to base claims on events that were or could have been raised in Evans I, all of which are foreclosed by claim preclusion and, in most cases, issue preclusion.
Am. Cpt. ¶¶ 19-29.
Id. ¶¶ 8-18.
Id. ¶¶ 30-44.
The AWOL Incident
Port Authority rules require all employees to report absences due to illness or other justifiable reasons to their immediate supervisors — not just the medical department — no more than ½ hour after scheduled starting time and then to continue to report thereafter as directed by the supervisor.
Lee Aff. Ex. D, at 10; Holmes Aff., 1/12/04, ¶ 3.
It is undisputed that plaintiff did not report for work on May 2, 2002 and remained absent until June 6, 2002. It is undisputed also that plaintiff did not report that absence to his immediate supervisors. Likewise, it is undisputed that plaintiff's paycheck was docked on May 24, 2002 because he had been AWOL since May 24, 2002. The fact that plaintiff had some correspondence during this period with the defendant's Office of Medical Services ("OMS") is of no moment, as his obligation was to notify his immediate supervisors. Indeed, OMS determined that he was fit for duty on May 2, 2002 and, as far as his supervisor, Ms. Holmes, was aware, that was the fact.
Holmes Aff., 10/9/93 ¶¶ 8-9; compare Def. 56.1 St. ¶¶ 20-23 with Pl. 56.1 St.; Lee Aff. Ex. H (Evans Dep. 268, 274).
Id. 268; Holmes Aff., 10/9/93 ¶¶ 8; compare Def. 56.1 St. ¶ 24 with Pl. 56.1 St. ¶¶ 2-4.
Paragraph 2 of plaintiff's Rule 56.1 statement claims that he sent e-mails to his immediate supervisors. However, the cited evidence — PX X and Y — are e-mails plaintiff sent on May 24, 2002 after he was placed on AWOL status which complained about his pay having been suspended and did not advise anyone of his absence.
Holmes Aff., 10/9/93 ¶ 10; compare Def. 56.1 St. ¶ 22 with Pl. 56.1 St. (failing to deny ¶ 22 of defendant's statement).
Holmes Aff., 1/12/04, ¶¶ 12-16.
Retaliation claims are analyzed under the McDonnell-Douglas test. Here, the defendant concedes that plaintiff has made out a prima facie case. Likewise, the defendant has articulated a non-discriminatory reason for the challenged employment action. In consequence, defendant is entitled to summary judgment dismissing this claim unless the evidence, viewed in the light most favorable to the plaintiff, would permit a reasonable trier of fact to find that a retaliatory motive played a part in the decision.
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
In this case, the evidence strongly supports the Port Authority's position. There is no genuine issue of fact as to its policy or as to the defendant's defiant refusal to comply with the policy. But that is not the end of the analysis.
Evans I was a bitterly fought lawsuit in which plaintiff named Ms. Holmes as a defendant. The defendants' motion for summary judgment was granted in part and denied in part on April 5, 2002, just days before the events at issue here. The possibility that the lawsuit and plaintiff's previous complaints played a role in the decision to dock his pay cannot be excluded, and the Court cannot say, at least on this summary judgment record, that retaliation did not play some role in the decision.
This is not to say that plaintiff's claim is a strong one. There is no evidence at all that plaintiff was treated any differently than anyone else who failed to report to supervisors as required. Moreover, even if retaliation was a factor, the defendant still might prevail by demonstrating that it would have made the same decision in any event. See Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989). But the Court's role on a motion for summary judgment is not to weigh the evidence. Accordingly, this branch of the motion must be denied.
The Job Assignments
Plaintiff contends that the Human Resources Department in 2003 did not forward his applications to the Tunnels, Bridges Tolls Department ("TBT") for consideration in filling two positions at the George Washington Bridge, one at the Staten Island bridges, and one at the Port Authority Bus Terminal in order to retaliate against him. Defendant seeks dismissal of the claims based on these events, essentially on the theory that the time interval between the protected activity and these events was too long to justify an inference of retaliation and also because plaintiff previously had demanded to be transferred out of TBT.
The first of the defendant's arguments is without merit, essentially for the same reason given above. It ignores the on-going battle represented by Evans I, which was under weigh at the time these actions were taken. The second, however, is more substantial.
Throughout Evans I, plaintiff complained mightily that the working environment in TBT was intolerable. On April 22, 2002, shortly after the summary judgment ruling in Evans I, plaintiff wrote to the executive director of the Port Authority. His lengthy letter sought to take advantage of the Court's finding of genuine issues of material fact as to some of his claims, lambasted a number of his superiors in TBT, and demanded a transfer out of that department:
"It is outrageous for me to continue to have to work with this person [Ms. Holmes] when the PA is large enough and I am talented enough to be found a position outside of TBT. . . . PA Medical has once again returned me to work in TBT, under Ernesto Butcher, effective, 4/23/03 [ sic]. I fear for my employment and my health. I therefore request to be removed from the racially discriminatory, hostile and retaliatory work environment in the Tunnels, Bridges and Terminals Department. * * * Now, to assign me to work in a known hostile work environment is criminal because TBT officials know that assignment is likely to seriously impact my health and it may kill me. I ask again that you reassign me to a suitable non-retaliatory position where I can continue to serve the people of the region, unencumbered by racial harassment and retaliation."
On May 29, 2002, plaintiff accepted a transfer to another department.
Lee Aff. Ex. O (bold in original, italics added).
Compare Def. 56.1 St ¶ 25 with Pl. 56.1 St.
Plaintiff concededly made out a prima facie case of retaliation with respect to these positions, and defendant came forward with evidence of a legitimate, non-retaliatory reason for screening plaintiff out of consideration. The Court assumes, without deciding, that a trier of fact reasonably could conclude that retaliation played a part in the defendant's refusal to consider plaintiff for these positions. But this incident raises the question whether defendant nevertheless must prevail under Price Waterhouse.
The Port Authority was in a position in which the plaintiff, who already had sued it, claimed that working in TBT was damaging his health. Indeed, he claimed that continuing to work there might kill him. The Port Authority's OMS on at least one prior occasion had found him not fit for duty following an incident in the office. Thus, defendant has a powerful argument that it would have rejected plaintiff's application for jobs in TBT regardless of whether there also was some retaliatory motive. Nevertheless, plaintiff seeks to reconcile his demand for a transfer with his application for these positions, arguing that any of the positions would have insulated him from those with whom he was involved in constant disputes.
Evans I, 192 F.Supp.2d at 259-60.
Mitchell Aff. Ex. F (Evans Aff.) ¶¶ 21-23.
The question whether plaintiff's attempted reconciliation of the applications with his letter is sufficient to raise a genuine issue of material fact perhaps is a close one. Inasmuch as there must be a trial in any case, the better course is to defer resolution of this question, at least until the close of plaintiff's case and perhaps until after a jury verdict, at which time a ruling on a Rule 50 motion might be called for. Accordingly, the Court for the present denies summary judgment on this ground.
Hostile Work Environment and Retaliation Claim
Plaintiff claims that he was subjected to a hostile work environment and retaliated against in that he repeatedly was not promoted, his supervisors refused to investigate his complaints of discrimination, and he was denied anniversary awards to which he was entitled and refused non-competitive mobility assignments on the same terms as those made available to non-African-American employees. (a) Retaliation
Am. Cpt. ¶ 32.
Id. ¶¶ 33-35, 36, 40-41.
Id. ¶ 42.
1. Plaintiff claims that he was denied anniversary awards to which he was entitled and that this action was retaliatory. Defendant contends that this refers to a single incident, when plaintiff's anniversary award was delayed from in or about July 2000 until March 22, 2001, the date on which he received the award and the corresponding benefits. Plaintiff does not disagree. Indeed, his memorandum and affidavit in opposition to the motion, as well as the excerpts from his deposition which he submitted, all are silent on the issue. Moreover, it is undisputed that anniversary awards to employees often were not delivered until well after the employees' anniversary dates and that plaintiff was absent from work from late May until September 2000 and again from late October 2000 through early January 2001. In the circumstances, no reasonable trier of fact could find that the delay in the delivery of plaintiff's anniversary award was retaliatory.
Am. Cpt. ¶¶ 42-43.
Def. Mem. 17; Lee Aff. Ex. N.
Philmus Aff. ¶ 4.
2. Plaintiff's memorandum makes clear that the alleged failures to promote at issue here are the four job assignments discussed above.
Pl. Mem. 23.
3. Defendant states that the mobility assignment claim is that plaintiff claims that he should have been assigned temporarily to Ms. Holmes' position when she went on maternity leave in March 2001. Plaintiff does not dispute this. His memorandum and affidavit in opposition to the motion do not mention the issue at all. Nor does the portion of his deposition submitted on the motion. It is undisputed also that the defendant posted the job opportunity, conducted interviews, and ultimately selected plaintiff. Thus, plaintiff's claim, if any, must be that the job was not simply handed to him — he had to apply and submit to an interview before he was selected. As a retaliation claim will lie only where the employee was subjected to a material adverse employment action — i.e., one that resulted in a material adverse change in the terms and conditions of employment — this claim gives rise to no claim for relief.
Def. Mem. 18.
Philmus Aff. ¶ 5.
E.g., Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000).
4. Plaintiff complains that the Port Authority retaliated against him by failing properly to investigate his complaints of discrimination. Review of his memorandum of law and the evidence cited there reveals that this complaint relates to three events: (1) a March 2000 "office taping" incident that was a focus in Evans I, (2) the fact that plaintiff's May 28, 2002 letter to the executive director of the Port Authority was referred to Mr. Philmus, director of TBT, for a response, and (3) his placement on AWOL status without a prior hearing, allegedly in violation of defendant's policies.
See, e.g., Evans I, 192 F.Supp.2d at 258-59, 278-80.
Pl. Mem. 21-25; Mitchell Aff. Exs. G at 46-48, 52-54, J, M, P at 55-60, Z.
Pl. Mem. 23; Mitchell Aff. Exs. B, E at 307-08.
(a) The "office taping" incident is readily disposed of. It was a central focus of Evans I and was resolved against the plaintiff. It is not available to him as a ground for relief in this case.
(b) Plaintiff's May 28, 2002 letter to the executive director adverted to his April 22, 2002 letter, part of which is described above, and then went on to complain that Ms. Holmes wrongfully had put him on AWOL status and stopped his pay on May 24, 2002. While it certainly is arguable that referring plaintiff's letter to Mr. Philmus, in light of the history between the two of them, was not the best management decision, the fact remains that a retaliation claim requires an adverse employment action. The referral of plaintiff's letter to the head of his department for a response did not constitute or effect a material adverse change in plaintiff's terms and conditions of employment. Plaintiff retained the same job, the same pay and benefits, and the same responsibilities.
Lee Aff. Ex. V.
Id. Ex. O.
Parenthetically, the Court notes that the letter twice described this Court's April 2002 decision denying summary judgment by saying that the Court had "affirmed evidence" supporting plaintiff's claims of discrimination by the defendant. This, to say the least, was a rather aggressive interpretation.
(c) Plaintiff's claim that the failed to investigate his complaint about the AWOL incident out of a retaliatory motive adds nothing to the claim that he was placed on AWOL status out of such a motive. If, in fact, retaliation played no part in his being placed on AWOL, then any failure to investigate caused no harm. If, on the other hand, retaliation was a factor and plaintiff is entitled to relief on that ground, he will have his remedy irrespective of whether any failure to investigate also was retaliatory.
(b) Hostile work environment
The legal standards defining discrimination by condoning a hostile work environment and the burden a plaintiff must shoulder to defeat a motion for summary judgment are well established:
"The Supreme Court has stated that `whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' A plaintiff establishes a claim for hostile environment sexual harassment if she demonstrates (1) harassment that was sufficiently severe or pervasive to alter the conditions of her employment, creating an abusive working environment, and (2) a sufficient basis for imputing the conduct that created the hostile environment to her employer.
"Although a continuing pattern of hostile or abusive behavior is ordinarily required to establish a hostile environment, a single instance can suffice when it is sufficiently egregious. We have no doubt a single incident of rape can satisfy the first prong of employer liability under a hostile work environment theory."
Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 135 (2d Cir. 2001) (citations omitted).
The events as to which the facts either are undisputed or, if disputed, present genuine issues of material fact are the only events which may be considered as part of plaintiff's work environment. The threshold question therefore is whether those facts, viewed in the light most favorable to plaintiff, would permit a trier to find that plaintiff was subjected to "harassment that was sufficiently severe or pervasive to alter the conditions of h[is] employment."
Id.
Here, viewing the evidence in the light most favorable to plaintiff and drawing all reasonable inferences in his favor, we have the following:
1. The defendant screened him out of consideration for four positions during or just after the pendency of Evans I.
2. Defendant docked his pay when he failed to report his absence for alleged medical reasons in circumstances in which, perhaps, the decision to take that action was influenced by a retaliatory motive.
It is unlikely that these events, even if established in plaintiff's favor, would be sufficiently severe or pervasive to alter the conditions of plaintiff's employment and create an abusive work environment. Nevertheless, as the incidents will be before the jury on plaintiff's retaliation claim in any case, the Court declines to rule on the hostile work environment claim at this time and will reserve judgment on that issue until the trial. Conclusion
For the foregoing reasons, defendant's motion for summary judgment is denied insofar as plaintiff asserts retaliation and hostile work environment claims based on (1) the placement of plaintiff on AWOL status in May 2002, and (2) the exclusion of plaintiff in 2003 from consideration for the four job assignments specified above. The motion is granted in all other respects. Further, the Court on its own motion will try the liability issues first and will proceed immediately to try damages only if the first segment of the trial results in a finding of liability.
SO ORDERED.