Opinion
No. 96 Civ. 0235 (PKL).
May 24, 2001
Bernardo Mercado, Pro se 30 Eastchester Road New Rochelle, New York
ELIOT SPITZER, ESQ. Attorney General of the State of New York Richard C. Rubenstein, Esq. Assistant Attorney General 120 Broadway New York, New York 10271
Attorneys for Defendant Division of New York State Police
OPINION AND ORDER
Pro se plaintiff Bernardo Mercado brings this action alleging unlawful employment termination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (hereinafter "Title VII"), and the New York State Human Rights Law, New York Executive Law § 296 (hereinafter "NYHRL"). Defendant Division of New York State Police moves for summary judgment in its favor pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has not opposed defendant's motion. For the reasons set forth below, defendant's motion is granted.
BACKGROUND
Defendant's version of the facts is deemed admitted, as plaintiff failed to serve any opposition papers to defendant's motion, as more specifically discussed below. See infra pp. 8-11, 14-15. against him. See id. at 4.
On April 4, 1983, the Division of New York State Police hired Mercado for the position of Trooper. See Affidavit of Richard P. Barrantes, Esq., sworn to on Dec. 7, 1999 (hereinafter "Barrantes Aff.") at 1. Mercado was stationed at Troop T, Zone I, in Tarrytown, New York, where he remained until his termination on July 28, 1992. See id. Although Mercado compiled a strong arrest record during his nine years as a New York State Trooper, he had an otherwise negative service record, replete with reprimands for insubordination, unprofessional conduct, dishonesty, and brutality towards civilians. In total, defendant issued seven letters of censure to Mercado, twice placed him on probation, and brought nineteen separate charges of misconduct against him. See id. at 4.
For example, plaintiff was issued four letters of censure for causing three separate automobile accidents, while on duty, in the sixteen month period from October of 1989 to January of 1991. See id. at 4. After defendant investigated these accidents, . it determined that Mercado was negligent in each, and that each accident was preventable. In addition to receiving two letters of censure for his third accident, Mercado was docked four days of annual leave and was placed on 90 days probation for this accident because it took place while plaintiff was away from his assigned post without requisite supervisory approval. See id. at 5.
On March 27, 1989, three days after being placed on probation for his third automobile accident, Mercado was involved in another automobile incident. While off-duty and driving with his wife and child, Mercado pulled over a van which had apparently drifted into Mercado's driving lane. Mercado approached the van with his weapon drawn, kicked the van's door, yelled obscenities at the driver, forcibly removed the driver from the van, and struck the driver in the chest. See id. at 5; see also New York State Police Incident Reports (hereinafter "Def.'s Incident Reps.") (attached as Ex. D to Barrantes Aff.) at 7. Defendant's investigation of this incident revealed that plaintiffs actions constituted serious misconduct and brought discredit on the New York State Police. See Def.'s Incident Reps. at 6-7. As a result of its investigation, defendant issued Mercado another letter of censure, suspended him without pay for two days, and placed him on probation for six months. See Barrantes Aff. at 6.
On June 6, 1989, defendant received a complaint about Mercado from Second Deputy District Attorney William H. McKenna of the Westchester County District Attorney's Office. See Barrantes Aff. at 6; Letter from William H. McKenna, Esq., to Major Bruce Arnold, New York State Police, dated June 6, 1989, (attached as Ex. F to Barrantes Aff.) at 1. McKenna's complaint expressed serious reservations about Mercado's continued viability as a witness in Westchester County after two county judges had harshly criticized Mercado's testimony. Specifically, McKenna's complaint informed defendant that on May 17, 1989, while testifying at a suppression hearing before County Judge John LaCava, Mercado invoked his Fifth Amendment right against self-incrimination during cross-examination by defense counsel. At this hearing, defense counsel produced evidence that Mercado was a scofflaw based on his failure to pay at least forty-four parking tickets, totaling approximately $2,500, received in New York City and Nyack, New York. See Barrantes Aff. at 6-7; New York State Police Personnel Complaints (attached as Ex. F to Barrantes Aff.) at 54-55, 75. After conducting an investigation into these matters, and ensuring that Mercado paid his outstanding parking violations, defendant issued Mercado another letter of censure and directed Mercado to take all necessary steps to restore his credibility with the Westchester District Attorney's Office and the County Court. See Aff. at 7; Letter of Censure from Bruce M. Arnold, Major — Troop Commander, to Trooper Bernardo Mercado, dated March 15, 1990 (attached as Ex. E to Barrantes Aff.) at 1-2.
On February 18, 1991, Mercado was involved in yet another traffic incident with a civilian. On this occasion, however, Mercado was off-duty, on sick leave, and driving a rental car. The incident occurred at the Spring Valley Toll Booth on the New York State Thruway when Mercado, while jockeying for position at the toll, twice struck the rear end of a car driven by Richard Stegner. When Stegner exited his car to check for damage, Mercado drew his firearm, pointed it at Stegner, yelled obscenities and racial epithets at Stegner and his three passengers, and spit on Stegner's car's back window. See Barrantes Aff. at 7; Def.'s Incident Reps. (attached as Ex. G to Barrantes Aff.) at 7-9. Apparently fearing for his safety, Stegner drove away and immediately reported the incident to the State Police. Mercado, who failed to identify himself as a police officer during this incident, failed to report the incident to his superiors. Defendant's investigation of the incident, however, revealed that Mercado was in fact the driver of the rental car who struck Steger's car and brandished a gun during the incident. As a result of Mercado's misconduct during this incident, defendant issued Mercado another letter of censure and penalized him with the loss of two annual leave days. See Barrantes Aff. at 8; Letter of Censure from George J. Meyers, Major — Troop Commander, to Trooper Bernardo Mercado, dated November 22, 1991 (attached as Ex. G to Barrantes Aff.) at 1.
On May 18, 1992, defendant completed an investigation into Mercado's role in the theft of $9,000 from a vehicle on October 4, 1991. Defendant concluded that Mercado was responsible for this theft and that he had likely committed Grand Larceny — a Second Degree Class C Felony — by stealing this money after pulling over a vehicle for a traffic violation. Mercado was terminated before he was brought up on charges for this incident.
On May 19, 1992, defendant brought nineteen separate charges of misconduct against Mercado. See Barrantes Aff. at 8; In the Matter of Charges and Specifications Against Trooper Bernardo Mercado (attached as Ex. H to Barrantes Aff.) at 1-17. These charges included claims that Mercado (1) left his assigned post to attend to personal matters, (2) failed to obey various orders of supervisors, (3) displayed a disrespectful and argumentative manner toward his supervisors, (4) failed to perform his assigned duties in a diligent fashion, (5) failed to comply with numerous New York State Police rules and regulations, (6) caused false entries to be made in official state records, and (7) failed to take appropriate police action by refusing to help detain a burglary suspect. See Barrantes Aff. at 9. Mercado pleaded not guilty to these charges, thereby necessitating an administrative hearing before a hearing board. On June 25, 1992, Thomas A. Constantine, the Superintendent of the New York State Police, designated a three-member hearing board to conduct a hearing and make recommendations to him about what type of discipline, if any, should be imposed on Mercado. See id.
The hearing board conducted a four-day hearing from June 30 to July 3, 1992, in which seventeen witnesses testified and twenty-six exhibits were introduced into evidence. See Barrantes Aff. at 10; Transcript of Administrative Hearing of Bernardo Mercado, June 29, 1992, (hereinafter "Hearing Tr.") at 257-58, 458-59, 663. On July 23, 1992, the hearing board issued its unanimous findings of fact, conclusion, and recommendation. The hearing board found Mercado guilty of fifteen of the nineteen charges and recommended that he be dismissed from the State Police. See Barrantes Aff. at 10; New York State Police Hearing Results In the Matter of Bernardo J. Mercado (hereinafter "Hearing Results") (attached as Ex. J to Barrantes Aff.) at 26. The hearing board concluded: "Trooper Mercado's service is punctuated with incidents of flagrant disrespect, insubordination and an unwillingness to perform his duties in accordance with the Rules and Regulations of the Division of State Police." Hearing Results at 26. Furthermore, the hearing board found that Mercado was "unsalvageable as an effective Trooper" and was "not capable of acting in a disciplined professional manner that is required of all members of the New York State Police." Id. In sum, the hearing board determined that "[t]he best interests of the Division as well as the citizens of this State require that he not be retained." Id. On July 28, 1992, after reviewing the record and the hearing board's recommendation, S Superintendent Constantine accepted the hearing board's recommendation and terminated Mercado. See Barrantes Aff. at 11; Letter from Thomas A. Constantine, Superintendent of the New York State Police, to Bernardo Mercado, dated July 28, 1992 (attached as Ex. K to Barrantes Aff.) at 1.
The Hearing Board found plaintiff not guilty of failing to carry out a roadcheck assignment diligently (Charge IV), leaving the roadcheck before its scheduled completion (Charge V), failing to provide a written memorandum detailing an on-duty injury (Charge XVI), and violating New York State Police rules and regulations relating to Charges IV and V (Charge XIX). See Hearing Results at 7-8, 22-23, 25-26.
II. Procedural History
In an attempt to clarify the myriad delays this case has experienced, the Court sets forth a detailed procedural history of this action below. Plaintiff commenced this action pro se on January 13, 1996, claiming that defendant terminated him on account of his race and Puerto Rican national origin. See Complaint at 3. On January 29, 1996, this action was referred to Magistrate Judge Sharon E. Grubin for all pretrial purposes, including dispositive motions. On January 8, 1998, Magistrate Judge Grubin sanctioned plaintiff for his desultory conduct during the litigation when he failed to appear at two scheduled depositions. See Mercado v. Division of New York State Police, 989 F. Supp. 521, 524-25 (S.D.N.Y. 1998). In addition, Magistrate Judge Grubin warned plaintiff that any further attempt to thwart discovery would result in the dismissal of his case.See id. at 525.
On December 9, 1999, defendant moved for summary judgment in its favor. At that time, however, defendant failed to serve plaintiff with a Notice to Pro Se Litigant Opposing Motion for Summary Judgment as required by Local Civil Rule 56.2, which had been adopted by the Board of Judges of the Southern District of New York on November 18, 1999. Therefore, on February 8, 2000, defendant served and filed an amended Notice of Motion, Local Civil Rule 56.1 Statement, and Notice to Pro Se Litigant Opposing Motion for Summary Judgment. In its Notice to Pro Se Litigant Opposing Motion for Summary Judgment, defendant informed Mercado (1) that he could not successfully oppose summary judgment by relying on the allegations in his Complaint; (2) if he failed to submit affidavits countering defendant's factual assertions, then the Court would accept defendant's factual assertions as true; and (3) that failure to oppose defendant's motion could result in the dismissal of his case without a trial. According to the schedule set forth in defendant's Amended Notice of Motion, plaintiff was required to serve and file any opposition papers to defendant's motion by February 22, 2000. Plaintiff failed to file opposition papers by this date.
In accordance with Local Civil Rule 56.2, the full text of defendant's Notice to Pro Se Litigant Opposing Motion for Summary Judgment is as follows:
The defendant in this case has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This means that the defendant has asked the court to decide this case without a trial, based on written materials, including affidavits, submitted in support of the motion. THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing your own sworn affidavits or other papers as required by Rule 56(e). An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence at trial. The full text of Rule 56 is attached.
In short, Rule 56 provides that you may NOT oppose summary judgment simply by relying on the allegations in your complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial. Any witness statements, which may include your own statements, must be in the form of affidavits. You may submit affidavits that were prepared specifically in response to the defendant's motion for summary judgment.
Any issue of fact that you wish to raise in opposition to the motion for summary judgment must be supported by affidavits or by other documentary evidence contradicting the facts asserted by the defendant. If you do not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by the defendant, the court may accept the defendant's factual assertions as true. Judgment may then be entered in the defendant's favor without a trial.
If you have any questions, you may direct them to the Pro Se Office.
On February 16, 2000, Magistrate Judge Grubin's term as a Magistrate Judge concluded, and the action was reassigned to Magistrate Judge Theodore H. Katz. On April 3, 2000, this Court agreed to decide the pending motion without a Report and Recommendation from Magistrate Judge Katz. In light of any confusion that may have arisen from the conclusion of Magistrate Judge Grubin's term, this Court extended the time for plaintiff to serve and file opposition papers to defendant's motion until April 28, 2000. The Court emphasized that "[s)hould plaintiff fail to serve opposition papers by April 28, defendant's motion will be deemed unopposed." Memorandum Order, dated Apr. 3, 2000, at 1. Plaintiff failed to file any opposition papers by this date.
On May 2, 2000, the Court received a letter from Edward M. Schatz, Esq., stating that he had been retained by plaintiff to oppose defendant's motion and seeking additional time to prepare and file opposition papers. See Letter from Edward M. Schatz, Esq., to the Court, dated May 2, 2000, (hereinafter "Schatz May 2, 2000 Letter") at 1. Mr. Schatz was the seventh attorney who plaintiff retained or otherwise assisted plaintiff in prosecuting this action. See Letter from Richard C. Rubenstein, Esq. to the Court, dated June 7, 2000, at 1. Despite plaintiffs failure to comply with the original deadline and the Court's two-month extension of the original deadline, the Court granted Shatz's request on May 8, 2000, and set a new deadline of May 26, 2000 for plaintiffs opposition. See Schatz May 2, 2000 Letter at 1.
On May 23, 2000, Schatz wrote to the Court seeking yet another extension, explaining that he had not yet reviewed plaintiffs file due to delays in obtaining a retainer from his client. See Letter from Edward M. Schatz, Esq., to the Court, dated May 23, 2000, at 1. The next day, the Court once again extended plaintiffs deadline to file opposition papers, this time until June 9, 2000. In so doing, the Court clearly stated: "[n]o further extensions." Id.
On June 20, 2000, the Court received an affirmation from Schatz, dated June 15, 2000, requesting to be relieved as counsel of record to plaintiff. See Schatz Affirmation at 2. Schatz stated that after thoroughly reviewing the materials provided by his client, he was "not able, within applicable legal and ethical standards, to put forth a legitimate defense to [defendant's summary judgment] motion." Id. On June 26, 2000, the Court granted Schatz's request to be relieved as counsel of record for plaintiff. See Mercado v. Division of New York State Police, No. 96 Civ. 0235, 2000 WL 827676, at *1 (S.D.N.Y. 2000). In addition, the Court granted plaintiff one final extension to submit opposition papers. The Court stated that "regardless of whether he retains new counsel or proceeds without representation, plaintiff shall have until Friday, July 14, 2000, to serve opposition papers on defendant. . . . Should plaintiff fail to serve opposition papers by July 14, defendant's motion for summary judgment shall be deemed unopposed for purposes of the Court's decision. Finally, under no circumstances will this Court grant plaintiff any further extensions." Id. at *2. Plaintiff failed to file opposition papers by July 14, 2000. Moreover, the Court has not received any correspondence from plaintiff since Schatz's last appearance before the Court on June 13, 2000.
DISCUSSION
I. Summary Judgment Standard for Unopposed Motion
In deciding this motion, the Court is mindful of the Second Circuit's recommendation that, when faced with an unopposed motion for summary judgment, a district court should accept the defendant's factual assertions as true and decide the case on its merits instead of dismissing the case for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See LeSane v. Hall's Security Analyst, Inc., 239 F.3d 206, 211 (2d Cir. 2001) (Calabresi, J.) ("[w]e wish to make clear that in cases [where plaintiff fails to oppose defendant's motion for summary judgment], resolutions on summary judgment (with defendant's Rule 56.1 statements deemed admitted by plaintiff) are generally preferred to dismissals under Rule 41(b).").
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); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996). The moving party has the burden to demonstrate that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994). The movant's burden will be satisfied "if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
In deciding a motion for summary judgment, the Court's function is not to try issues of fact, but instead to determine whether there remain any such issues to try. See Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). In so doing, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986); see also Holt 95 F.3d at 129. However, the substantive law governing the case will identify those facts that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment." Anderson 477 U.S. at 248.
"A `genuine' dispute over a material fact only arises if the evidence would allow a reasonable jury to return a verdict for the nonmoving party." Dister v. Continental Group, 859 F.2d 1108, 1112 (2d Cir. 1988) (quoting Anderson, 477 U.S. at 248). Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must "set forth specific facts showing that there is a genuine issue for trial."Anderson, 477 U.S. at 256. Thus, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Indeed, "mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). Rather, the non-moving party must provide "affirmative evidence" from which a jury could return a verdict in his favor. See Anderson, 477 U.S. at 257. In sum, if the Court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial'" and summary judgment should be granted to the moving party. Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288 (1968)).
The Second Circuit has instructed that trial courts must be cautious about granting summary judgment to an employer when its intent is at issue. See Gallo, 22 F.3d at 1224 (instructing district courts to scrutinize carefully the affidavits, exhibits, and depositions for circumstantial proof which, if believed, would show discrimination). However, this duty of care does not preclude district courts from granting summary judgment in discrimination cases. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 40 (2d Cir. 1994) (Kearse, J.) ("we should not be misunderstood as suggesting that summary judgment is never appropriate in discrimination cases" for "where intent is genuinely at issue, summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact" (citations omitted)). Indeed, as the Second Circuit recently noted, "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 466 (2d Cir. 2001) (McLaughlin, J.); See also Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) ("[s]ummary judgment is appropriate even in discrimination cases"); McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994) ("[T]he District Court's impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable."). Moreover, "the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to . . . other areas of litigation."Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (Kaufman, J.). Finally, the Supreme Court has "reiterated that trial courts should not `treat discrimination differently from other ultimate questions of fact.'"Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 524 (1993)).
When the non-moving party in a motion for summary judgment is proceeding pro se, the Court must consider additional factors. The Second Circuit has instructed that "special solicitude" should be afforded pro se litigants when confronted with motions for summary judgment. See Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988); see also Hanlin v. Mitchelson, 794 F.2d 834, 838-39 (2d Cir. 1986). Therefore, a pro se plaintiff is entitled to have his pleadings held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam). As such, the pleadings of a pro se plaintiff must be read liberally and interpreted to "raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the fact that plaintiff is proceeding pro se does not otherwise relieve him from the usual requirements of summary judgment. See Adams v. New Jersey Transit Rail Operations, No. 97 Civ. 430, 2000 WL 224 107, at *7 (S.D.N.Y. Feb. 28, 2000) (Preska, J);see also Stinson v. Sheriffs Dep't of Sullivan County, 499 F. Supp. 259, 262 (S.D.N.Y. 1980) (Weinfeld, J.) ("the liberal construction accorded to pleadings of a pro se plaintiff . . ., is not without limits, and all normal rules of pleading are not absolutely suspended.").
It is well established that a pro se plaintiff, like a represented plaintiff, may not rely solely on his complaint to defeat a summary judgment motion. See Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996) (per curiam). Therefore, the Second Circuit has held that if a pro se plaintiff fails to oppose a defendant's motion for summary judgment, the district court may grant defendant's motion if: (1) the pro se plaintiff has received adequate notice that failure to file any opposition may result in dismissal of the case; and (2) the Court is satisfied that "the facts as to which there is no genuine dispute `show that the moving party is entitled to a judgment as a matter of law.'" Id. at 486 (quoting Fed.R.Civ.P. 56(c)). The notice furnished to plaintiff by defendant's Local Civil Rule 56.2 Statement provided the requisite notice that failure to oppose defendant's motion could result in the grant of summary judgment against him and the dismissal of his case. See id. at 486. Moreover, the Court granted plaintiff four extensions to provide him ample time to oppose defendant's motion and repeatedly warned plaintiff that his failure to file opposition papers would result in the motion being decided unopposed. Since plaintiff failed to respond to defendant's motion, the facts set forth in defendant's motion papers and the assertions in defendant's Rule 56.1 Statement are accepted as true. See id.; see also Local Civil Rule 56.1; LeSane v. Hall's Security Analyst. Inc., 239 F.3d 206, 210 (2d Cir. 2001). Therefore, the Court turns to the question of whether the undisputed facts show that defendant is entitled to summary judgment as a matter of law.
II. Plaintiff's Title VII and NYHRL Claims
A. Discriminatory Termination
Title VII provides, in relevant part, that it shall be unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII discrimination claims are governed by the three-part burden shifting framework set forth inMcDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-804 (1973). See Weinstock, 224 F.3d at 42. Discrimination claims brought under the NYHRL are also analyzed using the Title VII framework. See, e.g., Song v. Ives Labs. Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) ("New York state courts have adopted the [Title VII] analysis for discrimination claims arising under the NYHRL."). Therefore, since plaintiffs Title VII and NYHRL claims assert the same allegation of discriminatory termination, these claims will be analyzed together and the Court's holding will apply with equal force to both claims.
Under the burden shifting framework established in McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of discriminatory termination. 411 U.S. at 802. In order to establish a prima facie case of discriminatory termination, plaintiff must show (1) that he belongs to a protected class; (2) that he was qualified for and satisfactorily performing his duties; (3) that he was discharged; and (4) that his discharge occurred under circumstances giving rise to an inference of discrimination. See Tarshis v. Riese Org., 211 F.3d 30, 35-36 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802);Chambers, 43 F.3d at 37. The fourth element of the prima facie case can be satisfied by a showing that the plaintiffs position remained open after he was discharged, or that he was replaced by someone outside his protected class. See De la Cruz v. New York City Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996). Plaintiffs burden of proof at the prima facie stage is de minimis. See Chambers, 43 F.3d at 37.
Once the plaintiff has established a prima facie case of discriminatory termination, the burden of production shifts to the defendant to rebut this presumption by articulating a legitimate, nondiscriminatory reason for its actions. See Reeves, 530 U.S. at 142. To satisfy its burden, the defendant must produce admissible evidence sufficient to justify a judgment in its favor. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981); Chambers, 43 F.3d at 38. "Any stated reason is sufficient; the employer need not persuade the court that the proffered reason was the actual reason for its decision." Tarshis, 211 F.3d at 36. If the employer makes such a showing, the presumption of discrimination completely "drops out of the picture." St. Mary's, 509 U.S. at 510-11. "It is important to note, however, that although the McDonnell Douglas presumption shifts the burden of production to the defendant, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Id. at 507 (quoting Burdine, 450 U.S. at 253).
Plaintiff must then be afforded the opportunity to prove by a preponderance of the "1 evidence that defendant's proffered, nondiscriminatory reason was not its true reason for the employment decision, and that race and/or national origin discrimination was defendant's real motivation. See id. at 507-08. "That is, the plaintiff may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 256). The plaintiff need not submit additional evidence to demonstrate discrimination, but can rely solely on the evidence establishing the prima facie case and the inferences drawn therefrom. See St. Mary's, 509 U.S. at 511 ("rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and . . ., no additional proof of discrimination is required"). Therefore, the ultimate question is whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. Weinstock, 224 F.3d at 42.
Here, plaintiff has failed to satisfy his burden of establishing a prima facie case of discriminatory termination. Although it is undisputed that Mercado belongs to a protected class and was terminated, defendant contests the final two prongs of the prima facie case — that Mercado was performing his duties satisfactorily and that his discharge occurred under circumstances giving rise to an inference of discrimination. Drawing all inferences in plaintiffs favor, the Court finds that Mercado's strong arrest record satisfies the "minimal showing" that he possessed the basic skills necessary for the job of Trooper.Gregory v. Daly, No. 00-7707, 2001 WL 406339, at *8 (2d Cir. 2001) (finding that a plaintiff satisfies the qualification prong of the prima facie case simply by demonstrating that he possesses the "basic skills necessary for performance of the job"). Therefore, despite plaintiffs egregious conduct while working as a Trooper, the Court finds that plaintiff was minimally qualified for and satisfactorily performing his duties for the limited purpose of establishing a prima facie case.
However, plaintiff has failed to satisfy the final and most important prong of the prima facie case, that his termination occurred under circumstances giving rise to an inference of discrimination. Plaintiffs Complaint does not suggest that the hearing board improperly considered race or national origin in its finding of guilt and recommendations, nor does plaintiff identify any remarks by his supervisors or other New York State Police personnel that would indicate that race or national origin may have played a role in his termination. Furthermore, plaintiff fails to point to any evidence that he was treated differently because of his race or national origin during his nine year employment with defendant. In short, the record is devoid of any evidence that would suggest that defendant terminated plaintiff under circumstances suggesting an inference of discrimination.
Even assuming arguendo that plaintiff established a prima facie case of discriminatory termination, defendant has satisfied its burden of articulating and producing evidence of legitimate, non-discriminatory reasons for its decision to terminate plaintiff. Indeed, defendant submitted evidence that it terminated Mercado on account of his frequent acts of insubordination, failure to abide by New York State Police rules and guidelines, repeated confrontations with civilians, and continuous conduct which adversely effected the New York State Police. Once defendant presents these legitimate, non-discriminatory reasons for plaintiffs termination, the presumption of discrimination established by the prima facie case "drops out of the picture," and plaintiff must prove by a preponderance of the evidence that defendant's stated reasons for its employment decision were not its true reasons, but merely a pretext for discrimination. See St. Mary's, 509 U.S. at 511; Burdine, 450 U.S. at 253. Here, plaintiff has produced no evidence to suggest that the reasons defendant has given for his termination were a pretext for discrimination. Instead, the Court is left with plaintiffs conclusory allegations that defendant terminated him on account of his race and/or national origin. Plaintiffs conclusory allegations, however, do not suffice to create a material issue of fact. See Goenaga. 51 F.3d at 18 see also Kadosh v. TRW. Inc., No. 91 Civ. 5080, 1994 WL 681763, at *5 (S.D.N.Y. 1994) (Leisure, J.) ("The work product of pro se litigants should be generously and liberally construed, but [plaintiffs] failure to allege either specific facts or particular laws that have been violated, renders his attempt to oppose defendants' motion ineffectual."). There is simply no evidence before the Court that defendant's rationale supporting its decision to terminate plaintiff was pretextual or motivated by improper animus. Therefore, the Court grants defendant's motion for summary judgment on plaintiffs Title VII and NYHRL discriminatory termination claims.
B. Retaliation
Plaintiff also alleges that he was fired in retaliation for reporting, in February of 1991, that Sergeant Robert Thoubboron reported to work intoxicated. Plaintiff claims that his supervisor, Lieutenant Alan Martin, failed to follow the appropriate department policy regarding an investigation of Sergeant Thoubboron, and treated plaintiff differently from his non-Hispanic counterparts after this complaint.
0n July 29, 1992, at plaintiffs Administrative Hearing, Lieutenant Martin testified that during his investigation of Mercado's allegation, Mercado conceded that he had never actually seen Sergeant Thoubboron intoxicated. Rather, Mercado informed him that the basis of his allegation was that "He [Thoubboron] wears a lot of cologne. I have seen his eyes bloodshot." Hearing Tr. at 79.
Title VII prohibits an employer from "discriminat[ing] against any of his employees . . . because [such employee] has opposed any practice made an unlawful practice by this title" 42 U.S.C. § 2000e-3(a). The goal of this section is "to forbid an employer from retaliating against an employee because of the latter's opposition to an unlawful employment practice." Manoharan v. Columbia Univ. Coll. of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). Retaliation claims under Title VII are analyzed under the three-step burden shifting framework of McDonnell Douglas and its progeny. See Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996). Plaintiffs retaliation claim under the NYHRL is also analyzed according to the McDonnell Douglas framework, and therefore will be considered in tandem with plaintiffs Title VII retaliation claim. See id.
To establish a prima facie case of retaliation, plaintiff must show (1) that he was engaged in a protected activity; (2) that defendant was aware of that activity; (3) that he suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. See id. at 1178. "The term "protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination." Cruz v. Coach Stores Inc., 202 F.3d 560, 566 (2d Cir. 2000); see also Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134-35 (2d Cir.), cert. denied, 528 U.S. 964 (1999) (discussing the scope of Title VII's "protected activity" provision). Moreover, plaintiff need not establish that conduct he opposes actually constitutes a violation of Title VII; rather, he need only have possessed a "`good faith reasonable belief' that the underlying challenged action was unlawful." Reed, 95 F.3d at 1178 (quoting Manoharan, 842 F.2d at 593). If plaintiff satisfies his burden of establishing a prima facie case of retaliation, then the burden of production shifts to defendant to proffer a legitimate, non-discriminatory reason for the alleged retaliation. See Ouinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998). Finally, if defendant meets its burden, plaintiff must adduce evidence that defendant's proffered reason was not its true reason for the employment decision, but merely a pretext for retaliation. See id.
Plaintiff utterly fails to satisfy his burden of establishing a prima facie case of retaliation. First, plaintiff does not claim that he was engaged in "protected activity" within the meaning of Title VII when he complained to Lieutenant Martin about Sergeant Thoubboron's alleged intoxication. Indeed, plaintiffs complaint was totally unrelated to any discriminatory employment practice of defendant. Thus, plaintiffs complaint falls well outside of Title VII's retaliation provision. Nor could plaintiff have possessed a good faith, reasonable belief that Sergeant Thoubboron's alleged intoxication was an unlawful employment practice in violation of Title VII. See Manoharan, 842 F.2d at 594 (holding that plaintiff could not have held a reasonable belief where he "neither pointed out discrimination against particular individuals nor discriminatory practices by [the employer]"). Second, plaintiff cannot establish a causal connection between his complaint and his termination. His termination occurred in July of 1992 — approximately one and a half years after his complaint about Sergeant Thoubboron — after a unanimous Administrative Hearing Board found plaintiff guilty of fifteen charges of misconduct, including insubordination, failure to abide by New York State Police rules and regulations, and causing false entries to be made in official state records. In short, plaintiff fails to demonstrate any connection between his termination and his complaint about Sergeant Thoubboron. Moreover, as discussed above, even assuming arguendo that plaintiff could establish a prima facie case, plaintiff has not adduced any evidence to show that defendant's proffered reasons for his termination were pretext for discrimination. Accordingly, the Court grants defendant's motion for summary judgment on plaintiffs Title VII and NYHRL retaliation claims.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is HEREBY GRANTED in its entirety. The Clerk of the Court is directed to dismiss plaintiffs Complaint with prejudice.