Opinion
No. 02-CV-2424 (LB).
January 14, 2005
OPINION AND ORDER
Plaintiff Antonio Gibbs brings this complaint under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000(e) et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12112- 12117, as amended by the Civil Rights Act of 1991, Pub.L. No. 102-166, alleging that defendant discriminated against him in his employment on the basis of his gender and disability. Plaintiff's complaint also alleges retaliation. The parties consented to a decision of this matter by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). Defendant moves for summary judgment under Fed.R.Civ.P. 56. For the reasons set forth below, the Court grants defendant's motion and dismisses plaintiff's complaint.
Plaintiff originally brought this action pro se. Counsel filed a notice of appearance on plaintiff's behalf dated April 14, 2003.
BACKGROUND
Defendant Administration for Children's Services ("ACS") serves as the child welfare agency in the City of New York. ACS seeks to protect New York City's children by providing, among other things, abuse and neglect investigations, counseling, drug rehabilitation programs, head start and other day care programs, child support enforcement and foster homes for approximately 34,000 children. (Def. Mem. of Law at 1).
Although plaintiff's complaint names the Administration for Children's Services as a defendant, City agencies are not suable entities. The proper defendant is therefore the City of New York.See N.Y. City Charter § 396; Lauro v. Charles, 219 F.3d 202, 205 n. 2 (2d Cir. 2000).
Plaintiff Gibbs has been employed as a provisional city employee in the procurement area of the ACS's Administrative Service for the Division of Childcare and Headstart since September, 1997. (See Gibbs Depo. 32:9-13, 54:11-12). Plaintiff continues to hold the civil service title of per diem Clerical Associate III under the union job specifications of the District Council 37, AFSCME, AFL-CIO, Local 1549 ("the union"). (See Visco Decl. at ¶ 10, Ex. D). Plaintiff asserts that the job assignments of a Clerical Associate III "are and have always been governed by those set forth in the union's Clerical Administrative Employees Job Specifications." (Pla. Opp. at 2). Plaintiff further asserts that "the local 1549 job specs do not include simple repairing of copy machines, faxes, time clocks and/or drinking water dispensers; changing toner or cartridges, and/or moving heavy objects and furniture." (Id. at 2). Despite these job specifications not being included in his Civil Service title, plaintiff alleges that he has been required by his supervisors to perform these out of title job duties because of his gender.
ACS disputes that the union job specifications govern the work assignments of the Clerical Associate III position. Defendant maintains that the union job specifications provide only general guidance about what tasks may be assigned to individual employees through broad job descriptions and "typical assignments" within each class of position. Instead, ACS utilizes master lists of "Tasks and Standards," promulgated by an internal Office of Personnel Administration with the input of the various ACS program areas. These Tasks and Standards outline individual job tasks and performance standards associated with each civil service title. (See Wynter Aff. at ¶¶ 5, 6, 8).
For the Clerical Associate III position, the union job specification states that the job duties "encompass clerical and related office activities utilizing manual and automated office systems." (See Visco Decl. at ¶ 10, Ex D).
Plaintiff is currently assigned four tasks from the ACS Tasks and Standards associated with the Clerical Associate III title. (See Glenn Aff. at 14, ex. B). He is responsible for troubleshooting certain office equipment, responding to staff requests for assistance with such equipment and initiating corrective action. (See Gibbs Depo. at 42:15 to 43:03). ACS personnel contact Gibbs when machines are in need of repair. Plaintiff calls in the repairs, escorts the technicians to the relevant machine, and logs the repair activity. Gibbs also maintains inventory, orders supplies and repairs duplicating equipment located at ACS's four resource areas. Until 2001, part of these tasks required that plaintiff monitor copy machines to ensure that they had an adequate stock of toner and, if necessary, replace toner cartridges in machines. (See Glenn Aff. ¶¶ 18-20, 28, 30).
Gibbs's work hours are from 8:00 a.m. to 4:00 p.m. Monday through Friday with a one hour lunch break from 12:00 p.m. to 1:00 p.m. (See Gibbs Depo 68:12-14). In 2001, ACS informed plaintiff that city policy prohibited plaintiff from taking an extra fifteen minutes at his lunch hour to cash his paycheck. In 2002, plaintiff was asked to eat breakfast in a designated employee lounge rather than at his desk. (Id. at 68:8-14). Plaintiff has never filed an official request for a transfer nor has he officially sought a promotion. (Id. 67:10 to 68:2). Plaintiff was terminated on May 13, 2003, but was rehired forty-one days later on June 23, 2003. (Plaintiff's Opposition to Motion for Summary Judgment ¶ 13).
DISCUSSION
Summary judgment is appropriate if there is no genuine material issue of fact requiring a trial and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "A dispute regarding a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lazard Freres Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1535 (2d Cir. 1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "The trial court's function in deciding such a motion is not to weigh the evidence or resolve issues of fact, but to decide instead whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party."Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
"When a motion for summary judgment is made and supported . . ., an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita, 475 U.S. at 586-87 (1986). In other words, the non-moving party must provide "affirmative evidence" from which a jury could return a verdict in its favor. Anderson, 477 U.S. at 257. "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Niagra Mohawk Power Corp. v. Jones Chemical, Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quotingKerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)). Moreover, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Id. (quoting Anderson, 477 U.S. at 252).
I. THE AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act ("ADA") provides that an employer shall not "discriminate against a qualified individual with a disability because of the ability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). In order to make out an ADA claim, the plaintiff must show that: (1) his employer is subject to the ADA; (2) he is disabled under the ADA; (3) he is otherwise qualified to perform the essential functions of the job with or without a reasonable accommodation; and (4) he suffered an adverse employment action because of his disability. Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001).
Defendant admits that it is an employer subject to the ADA, but contends that plaintiff has not established that he is disabled within the meaning of the ADA and therefore argues that plaintiff fails to state a prima facie case under the ADA.
A. Disability under the ADA
In Bragdon v. Abbott, 524 U.S. 624 (1998), the Supreme Court articulated the test for whether a plaintiff is disabled within the meaning of the ADA. The ADA defines disability as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Accordingly, to determine whether plaintiff's disability claim is covered by the ADA, courts begin with subsection (A) and focus first on whether plaintiff suffers from an impairment, whether the impairment affects a "major life activity" under the ADA and finally, whether plaintiff is substantially limited in the identified major life activity. Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46 (2d Cir. 2002);Colwell v. Suffolk County Police Dep't., 158 F.3d 635, 641 (2d Cir. 1998).
1. Impairment
The Court must first determine whether plaintiff's condition constitutes a physical impairment. The Department of Health, Education and Welfare (HEW) issued the first regulations interpreting the Rehabilitation Act, the precursor statute to the ADA, in 1977. The regulations are of particular significance because, at the time, HEW was the agency responsible for coordinating the implementation and enforcement of the Rehabilitation Act. Bragdon, 524 U.S. at 554-5. The HEW regulations, which appear unchanged in the current regulations issued by the Department of Health and Human Services, define "physical or mental impairment" as:
"(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or
"(B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."45 CFR § 84.3(j)(2)(i) (1997).
Plaintiff states that he suffers from Bells Palsy, injuries to his Achilles tendons, tendonitis in both knees, bulging disks in his back and blindness in one eye. (Pla. Opp. at 2). Several of these conditions affects the musculoskeletal system. Plaintiff's blindness affects his special senses. As such, the Court finds that plaintiff is impaired within the meaning of the ADA.
2. Major Life Activities
The ADA is not operative unless a claimant's impairment affects a major life activity. Bragdon, 524 U.S. at 637. Plaintiff indicates that his impairments limit his ability to perform such major life activities as standing, bending, lifting and reaching. (Pla. Opp. at 2). The Second Circuit has held that the ability to stand, sit, lift objects, work, and sleep are all major life activities within the meaning of the ADA. Colwell, 158 F.3d at 643. The Court finds that plaintiff's impairment in his sight as well as his ability to stand, bend, lift and reach do affect major life activities covered by the ADA.
3. Substantially Limiting
The final inquiry in the Bragdon analysis is to determine whether the plaintiff's impairment "substantially limits" any major life activity. Id. at 643. This inquiry is individualized and fact specific. Id. The EEOC regulations recommend that the following factors be considered in determining whether an individual is substantially limited in a major life activity: "(i) the nature and severity of the impairment: (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630(j)(2);See also Miller v. Taco Bell Corp., 204 F.Supp. 2d 456, 459 (E.D.N.Y. 2002) (discussing the case-specific inquiry required).
To be substantially limited in any major life activity, "an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long term." Sacay v. Research Foundation of CUNY, 193 F.Supp.2d 611, 626 (E.D.N.Y. 2002) (citing Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198 (2002)). "An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person." Toyota, 534 U.S. at 198.
Plaintiff asserts that his impairments substantially limit him as follows: "[t]he Second Circuit has identified sitting, standing, bending, lifting or reaching as major life activities under the ADA. Plaintiff has identified [sitting, standing, bending, lifting and reaching] as limited by his disabilities. All of these activities are substantially limiting in that plaintiff's employer requires him to perform the activities when he cannot do so." (Pla. Opp. 4). This conclusory assertion fails to establish that plaintiff is substantially limited in any major life activity because of his impairments. Nevertheless, the Court considers the effect of each of plaintiff's impairments in turn.
a) Monocular Vision
Plaintiff claims that he is blind in one eye. However, plaintiff fails to establish that he is substantially limited in any major life activity because of his eyesight. In Albertson's v. Kirkingburg, 527 U.S. 555 (1999), the Supreme Court held that an individual like plaintiff, who could not see out of one eye, was not categorically disabled under the ADA. See also Rivera v. Apple Industrial Corp et al., 148 F. Supp. 2d 202, 213 (E.D.N.Y. 2001) (monocular vision is insufficient to establish a substantial limitation on a major life activity). Although "people with monocular vision `ordinarily' will meet the [ADA]'s definition of disability," a plaintiff must offer evidence that the extent of the limitation is substantial as in loss of depth perception and visual field. Albertson's, 527 U.S. at 567.
In the instant case, plaintiff fails to make such a showing. Plaintiff offers no evidence to demonstrate that his monocular vision affects any major life activity. To the contrary, plaintiff admits that his corrected vision in one eye is 20/20, that he is licensed to drive a car and has done so in the past year. He is able to read and write. (Gibbs Depo 34:17 to 36:2, 99:15). All of these factors are relevant to determine whether plaintiff's impairments substantially limit a major life activity within the meaning of the ADA. See Sutton v. United Airlines, Inc., 527 U.S. 471, 482 (1999) (mitigating measures must be taken into account to determine whether an individual is disabled within the meaning of the ADA). The Court finds that plaintiff has not established that his monocular vision substantially limits him in any major life activity.
b) Bells Palsy
As with his monocular vision, plaintiff fails to describe the limitations he suffers as a result of his Bells Palsy. Plaintiff offers no evidence to demonstrate that his Bells Palsy affects any of his major life activities. An undated doctor's note in plaintiff's personnel file states that, "[plaintiff's physician] saw Antonio Gibbs in neurological consultation on 4/3/01. His tasks should be limited to not changing the toner in the photocopy machine as, this may aggravate his condition." (Def's Rule 56.1 Stat. Ex. H) (emphasis in original). Even if the Court were to construe this note as a diagnosis relating to plaintiff's Bells Palsy, this note alone is insufficient to establish that plaintiff is substantially limited in any major life activity. See Sacay, 193 F.Supp.2d at 626-27 (A plaintiff must do more than submit evidence of a medical diagnosis, he must offer "evidence that the extent of the limitation caused by [the] impairments in terms of his own experience is substantial").
Plaintiff stated at his deposition that his eye tears because of his Bells Palsy and that his eye does not shut all the way when he sleeps. (Gibbs Depo 89: 21 to 90:4). However, such symptoms do not substantially limit plaintiff in any major life activity. Even if plaintiff's sleeping is affected, "[d]ifficulty sleeping is extremely widespread." See Colwell, 158 F.3d at 644 (difficulty sleeping does not constitute a disability under the ADA where plaintiff fails to show that his "affliction is any worse than is suffered by a large portion of the nation's adult population"). The other effects of plaintiff's Bells Palsy, eyes that water and discomfort in cold weather, are similarly not sufficiently severe to be considered "substantially limiting." As such, the Court finds that plaintiff has not established that his Bells Palsy substantially limits him in any major life activity.
c) Tendonitis and Dislocated Disk in Plaintiff's Lower Back
Plaintiff also fails to demonstrate that his tendonitis and/or his back problems substantially limit him in any major life activity. Plaintiff alleges that his tendonitis inhibits his ability to sit, stand, bend, lift and reach. However, plaintiff's conclusory allegations are too vague to establish that he is substantially limited in any major life activity as a result of his tendonitis and back problems.
Plaintiff's personnel file contains a medical report dated August 10, 1994 which diagnosed plaintiff with back ailments resulting from an automobile accident on August 9, 1994. (Def. Rule 56.1 State. Ex. H). However, even if plaintiff's diagnosis was more recent, it would still be insufficient to establish that plaintiff's back problems substantially limit him in any major life activity. Although plaintiff claims that his back condition is permanent, he also admits that he ceased therapy for his back in November of 1994. Plaintiff further states that he suffers from tendonitis in both his knees and an Achilles tendon that is aggravated by weather, long walks and heavy loads on his legs. (Gibbs' Depo. 92:11 to 96:14). However, plaintiff admits that he stopped receiving treatment for tendonitis in early 2002. (Gibbs' Depo. 92:19). Plaintiff makes no showing that his tendonitis and back problems substantially limit him in any major life activity or are worse than those problems suffered by a significant portion of the population. See Colwell, 158 F.3d at 644 (employees failed to show that they were substantially limited where one employee could not sit for "prolonged" periods, lift "very heavy objects," or stand in one particular area for more than an hour, and the other employee had difficulty sitting or standing for "a long period of time" and lifting anything heavy).
The record herein reflects that plaintiff commutes to and from work every day on public transportation and that he walks several blocks to and from the subway without the use of a cane or crutches. Plaintiff also runs and does callisthenics such as push-ups and sit-ups. (Gibbs' Depo. 34:17 to 35:3). Plaintiff regularly engages in a range of activities which belie any claim that his tendonitis and back problems substantially limit him in any major life activity under the ADA.
Although plaintiff has demonstrated that he is impaired, he cannot establish, even when construing the motion in the light most favorable to him, that any major life activity is substantially limited by his impairments. As such, plaintiff is not disabled within the meaning of the Americans with Disabilities Act. Accordingly, defendant's motion for summary judgment is granted and plaintiff's disability claims are dismissed.
II. PLAINTIFF'S GENDER CLAIMS
Title VII provides that "every person, whether a citizen or not, has a right to be free from discrimination in employment on the basis of race, color, gender, national origin, or religion." 42 U.S.C. § 2000e-3(a). To state a prima facie case of gender discrimination under Title VII, plaintiff must show (1) that he was a member of a protected group; (2) that he was qualified for the job in question; (3) that the defendant took an adverse employment action against him; and (4) that the circumstances support an inference of discrimination on the basis of his membership in that protected class. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Graham v. Long Island Rail Road, 230 F.3d 34, 38 (2d Cir. 2000). "A plaintiff may raise such an inference [of discrimination] by showing that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group." Graham, 230 F.3d at 39 (citations omitted). Moreover, the burden a plaintiff alleging discrimination by his employers carries to survive a summary judgment motion at the prima facie stage is a minimal one. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir. 1997) en banc.
Under the familiar McDonnell Douglas burden-shifting framework in Title VII and ADEA cases, as revisited by the Supreme Court in Reeves v. Sanderson Plumbing Prod. Inc., 530 U.S. 133 (2000), if the plaintiff succeeds in presenting a prima facie case of discrimination, the burden shifts to the defendant to "produce evidence that the plaintiff was rejected, or that someone else was preferred, for a legitimate nondiscriminatory reason." Reeves, 530 U.S. 142, quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). This burden is merely one of production, not persuasion, and it involves no credibility assessment. Id. at 142 (citations omitted); see also Tarshis v. The Riese Org., 195 F. Supp. 2d 518, 525 (S.D.N.Y. 2002). Once the defendant meets this burden, the McDonnell Douglas framework drops out, and the sole remaining issue is discrimination vel non. Reeves, 530 U.S. at 142-42 (quotingSt. Mary's, 509 U.S. at 510). Thus, plaintiff bears the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against him. Id.
When deciding a motion for summary judgment in the employment discrimination context, the Court must examine the facts to determine whether the plaintiff could satisfy this ultimate burden. Windham v. Time Warner, Inc., 275 F.3d 179, 187-88 (2d Cir. 2001); Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000). In some cases "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false may permit the trier of fact to conclude that the employer unlawfully discriminated." Windham, 275 F.3d at 187-88 (quoting Reeves, 530 U.S. at 148). However, becauseReeves requires the Court to examine the entire record, even if a plaintiff establishes some evidence of pretext, summary judgment may still be appropriate when the plaintiff creates only a weak issue of fact as to pretext and there exists abundant and uncontroverted independent evidence that no discrimination occurred. Schnabel, 232 F.3d at 90 (quoting Reeves, 530 U.S. at 148). With these standards in mind, the Court analyzes plaintiff's Title VII claims.
Plaintiff states that he was assigned tasks outside of his job title that no females in his office were required to do, even though plaintiff presented doctor's notes stating he should not perform those tasks. (Def. Opp. 5). Moreover, plaintiff asserts his May 13, 2003 termination was an adverse and retaliatory employment action based on his complaints of discrimination. Defendant does not dispute that plaintiff is a member of a protected class and that plaintiff is qualified for the position he holds. However, defendant contends that there was no adverse employment action taken against plaintiff based on his gender and that, even if there was an adverse employment action taken against him, plaintiff cannot establish that the adverse employment action was taken under circumstances that give rise to an inference of discrimination.
A. Adverse Employment Action
To suffer an adverse employment action, a plaintiff must endure "a `materially adverse change' in terms or conditions of employment." Galabaya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d. Cir. 2001) (quoting Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999)). To be "materially adverse," a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Id. While adverse employment actions extend beyond readily quantifiable losses, "not everything that makes an employee unhappy is an actionable adverse action."Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002); Sank v. City University of New York, 219 F.Supp.2d 497, 503 (S.D.N.Y. 2002).
In order for an action to be considered an adverse employment action under Title VII, plaintiff must demonstrate that the action "created a materially significant disadvantage with respect to the terms of [his] employment." Williams v. Donnelly, 368 F.3d 123, 128 (2d Cir. 2004). "Examples of materially adverse employment actions 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." Feingold v. State of New York et al., 366 F.3d 138, 152 (2d Cir. 2004); see also Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (other examples of adverse employment actions include "discharge, refusal to hire, refusal to promote . . . and reprimand").
Plaintiff claims that the out of title assignments which he was required to regularly perform constitute a materially adverse change in the terms and conditions of his employment and that women were not required to perform these tasks. Specifically, plaintiff claims discrimination in his assignment of Task #84 from the ACS Tasks and Standards which lists "[t]roubleshooting procedural/equipment/other problems, by responding to staff requests for assistance and determine cause/solution of problem/recommending/initiating corrective action in order to resolve non-routine disruption in work activities." (Def.Mem. of Law at 18). Plaintiff alleges that "he was given tasks to perform that no females in his office were required to do, even though plaintiff presented a doctor's note advising him not to perform those tasks." (Pla. Opp. at 5).
However, according to uncontroverted evidence submitted by defendant, after reviewing a sample of the 150 female ACS employees with plaintiff's same title, Clerical Associate III, approximately fifty (one-third of the female Clerical Associate IIIs sampled) were assigned to perform Task #84. (Aff. Claudette Wynter ¶ 16). Plaintiff disputes defendant's affidavit and states that no females in his office were required to perform this task, but plaintiff offers no evidence to controvert that other female Clerical Associate IIIs employed by defendant performed Task #84. Plaintiff offers nothing more than his allegation to establish that he was assigned Task #84 based on his gender. Therefore, plaintiff fails to establish gender discrimination.
That plaintiff was unhappy with his assignment of Task 84 is clear, however it is unclear that plaintiff's assignment of Task 84 was an adverse employment action within the meaning of Title VII. An adverse employment action must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Weeks v. New York State, 273 F.3d 76, 85 (2d Cir. 2001) abrogated on other grounds by National RR Passenger v. Morgan, 536 U.S. 101 (2002). Plaintiff also claims that he was denied fifteen additional minutes at lunch to cash his paycheck and permission to eat at his desk, privileges he claims other workers enjoyed. However, even assuming arguendo that these allegations are true, they do not constitute adverse employment actions under Title VII. Plaintiff's allegations here fall well short of establishing an adverse employment action. That plaintiff was denied an extra fifteen minutes on his lunch hour to cash his paycheck and was not allowed to eat at his desk are not materially significant disadvantages with respect to the terms of his employment. Accordingly, these conditions cannot be considered adverse employment actions under Title VII.
However, plaintiff's firing on May 13, 2003, does constitute an adverse employment action. Title VII specifically provides for discharge as a per se adverse employment action. See 42 U.S.C. § 2000e-2(a)(1) (unlawful employment practice "to fail or refuse to hire or to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin"). Defendant does not dispute that plaintiff was fired and, as such, the Court must consider whether the circumstances surrounding plaintiff's firing give rise to an inference of discrimination.
B. Plaintiff's Discharge
Plaintiff must establish that his discharge occurred under circumstances that give rise to an inference of discrimination on the basis of his membership in a protected class. Graham, 230 F.3d at 39. The fourth element of a prima facie case may be satisfied in a variety of ways including: actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus, see Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992), preferential treatment given to employees outside the protected class,Chertkova v. Connecticut General Life Ins., 92 F.3d 81, 90-91 (2d Cir. 1996), or a pattern of recommending plaintiff for positions for which he is not qualified and failing to recommend plaintiff for positions for which he or she is well-qualified.Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 205 (2d Cir. 1995). A plaintiff may also show that defendant continued to seek applicants to fill the position he was terminated from, or more generally, that the time or sequence of events leading to plaintiff's termination give rise to an inference of discrimination. Chertkova, 92 F.3d at 91.
Although the Supreme Court in McDonnell Douglas noted "the facts necessarily will vary in Title VII cases," 411 U.S. at 802 n. 13, there is nothing in the instant record to infer that plaintiff's discharge was based on gender discrimination.
Plaintiff was discharged on May 16, 2003. At that time, defendant had already moved for summary judgment and plaintiff's newly retained counsel had not yet filed an opposition to the action. Plaintiff's counsel's August 25, 2003 letter to the Court states "[n]o reason was given to Mr. Gibbs for his firing . . . On June 23, 2003, before I filed any motion, Mr. Gibbs was rehired and transferred to a new location within defendant's offices. After his rehiring and transfer, I asked Mr. Gibbs if he was satisfied with his new position and he indicated that he was." Chachkes letter, August 25, 2003 at 2.
Defendant asserts that plaintiff was terminated for forty-one days "at a time when thousands of city workers [were] being laid off due to a budgetary crisis," and that plaintiff was almost immediately rehired. Def. Rep. at 7. Plaintiff does not dispute that there was a budgetary crisis and citywide layoffs at this time. Moreover, plaintiff submits nothing linking his discharge to his gender. No facts are alleged that give rise to an inference of discrimination. There is no basis upon which a jury could find that plaintiff was discharged based on gender discrimination. Accordingly, defendant's motion for summary judgment as to plaintiff's gender discrimination claim under Title VII is granted.
III. RETALIATION
The Court can review only those claims included in plaintiff's EEOC charge and those "reasonably related" to claims presented in the charge. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). Plaintiff did not claim retaliation in his charge of discrimination in November 2000. However claims of retaliation are generally considered "reasonably related" to a previous EEOC charge. Butts v. City of New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1402 (2d Cir. 1993), superseded by statute on other grounds as stated inHawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998);Nonnenmann v. City of New York, 174 F.Supp.2d 121, 130 (S.D.N.Y. 2001). Although plaintiff failed to raise retaliation in his EEOC charge, the Court shall review his retaliation claim as it is "reasonably related" to his claims of discrimination.
Retaliation claims under Title VII are also analyzed using theMcDonnell-Douglas burden-shifting framework. See Coffey v. Dobbs Int'l Servs., Inc., 170 F.3d 323, 326 (2d Cir. 1999) (burden-shifting analysis applies to retaliation claims under Title VII). To establish a prima facie case of retaliation under Title VII, the plaintiff must show that: (1) he engaged in an activity protected by Title VII; (2) the employer was aware of this activity; (3) the employer took an adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity. Id.
Plaintiff has established that he engaged in an activity protected by Title VII; that defendant was aware of this activity; and that plaintiff was terminated, thus suffering an adverse employment action. However, plaintiff has not demonstrated any causal connection between his complaint regarding discrimination and his discharge. As a result, plaintiff fails to demonstrate that his termination was in retaliation for his complaints of discrimination.
Absent any other evidence, plaintiff could raise an issue of fact as to causation by demonstrating a short duration between the protected activity and the alleged retaliation. See Cifra v. GE, 252 F.3d 205, 217-18 (2d Cir. 2001) (summary judgment denied when only twenty days elapsed between defendant learning that plaintiff had hired an attorney to pursue gender discrimination claims and plaintiff's termination); Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (causal connection is sufficient where only twelve days elapsed between the protected activity and the adverse employment action).
In the instant case, plaintiff filed his administrative charge of discrimination on November 13, 2000, almost two-and-one-half years before the alleged retaliatory firing in May 2003. In analyzing causation, the Court considers when defendant first became aware of plaintiff's protected activity. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (defendants did not retaliate because they had no notice of the issuance of a right to sue letter). Defendant clearly had notice of plaintiff's claim when he filed his charge of discrimination with the State Division of Human Rights on November 13, 2000. Compl. at 4. No action was taken against plaintiff when defendant learned that a discrimination charge was filed. The delay of two-and-one-half years between plaintiff's filing of his discrimination charge and his termination is too attenuated to suggest causation in this case. See Hawana v. City of New York, 230 F. Supp. 2d 518, 530 (S.D.N.Y. 2002) (finding that a two-year delay between plaintiff's filing his charge of discrimination and disciplinary charges that resulted in his termination too attenuated to suggest a causal relationship).
Plaintiff proffers nothing in the record to suggest that his May 2003 termination was retaliation for his complaint of discrimination. Moreover, plaintiff does not dispute that he was rehired forty-one days later or that thousands of City workers were being laid off at that time due to a citywide budget crisis. Therefore, plaintiff has not demonstrated any causal connection between his complaint of discrimination and his discharge. Accordingly, defendant's motion for summary judgment on the plaintiff's retaliation claim under Title VII is granted.
CONCLUSION
Defendant's motion for summary judgment is granted in its entirety. Plaintiff has not provided affirmative evidence from which a jury could return a verdict in his favor. The Clerk of Court shall enter judgment and close the case.
SO ORDERED.