Summary
warning notices due to insubordination not adverse employment actions where insubordinate behavior is not contested
Summary of this case from Joseph v. New York City Department of CorrectionsOpinion
Nos. 02-CV-2834 (SJF)(LB), 03-CV-2765 (SJF)(LB).
January 27, 2005
OPINION ORDER
I. Introduction
Pro se plaintiff Eugene Milford ("plaintiff" or "Milford") filed two discrimination actions against his employer, the New York City Department of Health and Mental Hygiene ("DOHMH"). Read together, the two complaints allege that the New York City Board of Health and several individual defendants discriminated against plaintiff on the basis of gender, national origin, and disability and retaliated against him in violation of the Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."). For the reasons set forth below, the motion is GRANTED.
The New York City Board of Health is the legislative body of the DOHMH. Section 396 of the New York City Charter provides that: "All actions and proceedings for the recovery of penalties shall be brought in the name of the City of New York and not in that of any agency except where otherwise provided by law." N.Y. City Charter § 396. Accordingly, since the DOHMH is an agency, it is not a sueable entity. However, given plaintiff's pro se status, his claims will be construed as if brought against the City of New York.
Since there is no individual liability under either Title VII,Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995), or the ADA,Gentile v. Town of Huntington, 288 F. Supp. 2d 316, 322 (E.D.N.Y. 2003), these claims against the individual defendants are dismissed.
Although plaintiff also alleges that he was discriminated against on the basis of his criminal record, this claim is dismissed since it is covered by neither Title VII nor the ADA. See Robinson v. N.Y.P.D. Personnel Empl. Div., No. 99-1654, 1999 U.S. Dist. LEXIS 17746, at *5 (S.D.N.Y. Nov. 18, 1999); Quick v. Runyon, No. 96-0474, 1997 U.S. Dist. LEXIS 21665, at *2-*3 (E.D.N.Y. Mar. 31, 1997).
The facts are derived from defendants' statement of undisputed material facts pursuant to Local Rule 56.1 and the accompanying affidavits and other evidentiary material filed in support of defendant's motion for summary judgment, as well as plaintiff's "Objections and Responses to the Defendants' Statements Supporting Motion for Summary Judgment." The facts are not in dispute except as noted.
Plaintiff commenced employment with the DOHMH as a Public Health Advisor intern in December 1993, and was appointed as provisional Public Health Advisor in the Sexually Transmitted Diseases ("STD") Bureau in April 1994. In June 1995, plaintiff was promoted to provisional Senior Public Health Advisor II in the STD Bureau and then permanently appointed to Public Health Advisor.
In 1997, plaintiff submitted a false document regarding his absence from work and was fined fourteen (14) days pay. Due to continued attendance problems, his work assignment was changed in 1999. The DOHMH posted a job vacancy notice for a Public Health Advisor II position in the fall of 2000 and again in the winter of 2001. Plaintiff did not apply for either position. Female applicants were chosen to fill the two vacant positions.
In July 2001, plaintiff received a warning notice from his supervisor regarding an earlier incident of insubordination.
In August 2001, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination based upon gender and retaliation. The EEOC determined that it would not be able to investigate the charges and issued a right to sue letter. On April 8, 2002, plaintiff was involved in his third car accident with a DOHMH vehicle in four months. He suffered injuries to his shoulder, neck, and back, and has not returned to work since that date. In May 2002, plaintiff filed a complaint in federal court alleging discrimination based upon gender and retaliation. Plaintiff filed a second complaint with the EEOC in December 2002 alleging retaliation and discrimination based on gender, national origin, and disability. The EEOC again determined that it was unable to investigate the charges and issued a second right to sue letter. In May 2003, plaintiff filed a second federal court complaint alleging retaliation and discrimination based upon gender, national origin, and disability.
III. Standard of Review
Summary judgment should not be granted unless "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material "if it might affect the outcome of the suit under the governing law." Holtz v. Rockefeller Co., 258 F.3d 62, 69 (2d Cir. 2001). An issue of fact is genuine only if a jury could reasonably find in favor of the nonmoving party based on that fact. Id. The moving party bears the initial burden of establishing the absence of any genuine issue of material fact, after which the burden shifts to the nonmoving party to establish the existence of a factual question that must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The trial court is required to construe the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in its favor. Id. at 252;Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
The Second Circuit has recognized that direct evidence of discriminatory intent is rare, and often must be inferred from circumstantial evidence. Holtz, 258 F.3d at 69. Thus, granting summary judgment in such cases should be done with an extra measure of caution. However, if a discrimination case is void of genuine issues of material fact, summary judgment may be appropriate. Id. (citing McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997)); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.").
A pro se plaintiff's submissions are held to less stringent standards than formal pleadings drafted by attorneys. Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam). A court must "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 878, 790 (2d Cir. 1994)). Nonetheless, a pro se plaintiff is not exempt from compliance with relevant rules of procedural and substantive law. Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir. 1983).
IV. Analysis
Title VII makes it unlawful for an employer "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) (2004). The ADA makes it unlawful for covered entities to "discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a) (2004). Both Title VII and the ADA prohibit employers from retaliating against employees who oppose prohibited discriminatory practices. 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 12203(a).
Since there is no direct evidence of discrimination, plaintiff's discrimination and retaliation claims brought pursuant to Title VII and the ADA are examined under the three-step burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). See Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir. 2002) (applying McDonnell Douglas standard to ADA claim); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (burden-shifting analysis used in Title VII discrimination claims also applies to Title VII retaliation claims). Under McDonnell Douglas, a plaintiff must first establish a prima facie case. McDonnell Douglas Corp., 411 U.S. at 802. Once the plaintiff has established a prima facie case, the burden shifts to the defendant, who must state a legitimate, non-retaliatory reason justifying the allegedly improper employment action. Id. at 802-03. If the defendant meets this burden, the plaintiff must point to evidence for a reasonable jury to find that the proferred reason is merely a pretext for impermissible retaliation. Id. at 807.
A. Title VII Discrimination
1. Failure to Promote
To establish a prima facie case of discriminatory failure to promote, a plaintiff must satisfy a four-pronged test: (a) he is a member of the protected class; (b) he applied to a position for which he was qualified; (c) he was denied the position; and (d) the circumstances of the adverse employment decision give rise to an inference of discrimination. See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003); Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000).
a. Protected Class
It is undisputed that plaintiff is a member of a protected class as to his gender. Although plaintiff also claims that he was discriminated against on the basis of his national origin, he has failed to allege membership in a protected class. "National origin" is defined as "the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88, 94 S. Ct. 334, 38 L. Ed. 2d 287 (1973). In plaintiff's second action, he merely alleges that he is a native of South Carolina, and not that he was discriminated against on the basis of his American national origin. Accordingly, plaintiff's discrimination claim based upon his national origin is dismissed.
b. Promotion Application
Although a plaintiff generally must establish that he applied for the positions which form the basis of the failure to promote claims, Brown v. Coach Stores, Inc., 163 F.3d 706, 711-12 (2d Cir. 1998); Vargas v. Chubb Group of Ins. Cos., No. 99-4916, 2002 U.S. Dist. LEXIS 18438 (S.D.N.Y. Sept. 30, 2002), this requirement does not apply where "the plaintiff indicated to the employer an interest in being promoted to a particular class of positions, but was unaware of specific available positions because the employer never posted them." Mauro v. Southern New Eng. Telecomms., Inc., 208 F.3d 384, 387 (2d Cir. 2000). According to the records of Sebiyam Sam, Program Management Officer for the DOHMH Sexually Transmitted Diseases Bureau, plaintiff never applied for the positions that are the subject of his failure to promote claims. Since plaintiff has failed to offer evidence to the contrary, and since plaintiff does not allege that the DOHMH neglected to post the vacancies, his gender-based failure to promote claims are dismissed.
2. Disparate Treatment
To establish gender-based disparate treatment claim under Title VII, plaintiff must either: (1) show that he has suffered an adverse job action under circumstances giving rise to an inference of discrimination on the basis of sex or (2) demonstrate that harassment on the basis of sex created a hostile work environment. Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004).
a. Adverse Job Action/Inference of Discrimination
The Second Circuit has held that:
A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in working conditions in the terms and conditions of employment. To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience. . . . A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.Galabaya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal citations omitted).
In addition to not being promoted, plaintiff claims that he was assigned "more zip codes even [though] [he] do[es] not work on Saturday like [his] fellow co-workers." (Not. of Mot. exh. X). However, plaintiff has not established that this work adversely affected his working conditions. See Gilford v. City of New York, No. 03-0091, 2004 U.S. Dist. LEXIS 13150, at *18-*19 (S.D.N.Y. July 14, 2004); Young v. Rogers Wells, LLP, No. 00-8019, 2002 U.S. Dist. LEXIS 21541, at *17-*18 (S.D.N.Y. Nov. 6, 2002).
Plaintiff also alleges that he received a warning notice from his supervisor regarding an incident of insubordination, (Not. of Mot. exh. Q, X), but he conceded at his deposition that he disobeyed his supervisor's directives and he has not demonstrated how the warning notice adversely affected the terms or conditions of his employment. See Weeks v. New York, 273 F.3d 76, 86 (2d Cir. 2001) (holding that a notice of discipline for misconduct did not constitute an adverse employment action where the employee alleged no facts that could support the inference that the notice created a materially adverse change in her working conditions); Lumhoo v. Home Depot USA, 229 F. Supp. 2d 121, 150 (E.D.N.Y. 2002) (finding that plaintiffs failed to show how the disciplinary notices affected their compensation or other benefits of employment).
Finally, plaintiff claims that numerous involuntary transfers constituted adverse employment actions. "In involuntary transfer cases, the inquiry focuses on whether the transfer constitutes a `negative employment action tantamount to a demotion.'" Clarke v. City of New York, No. 98-3715, 2001 U.S. Dist. LEXIS 11136, at *15 (E.D.N.Y. Aug. 2, 2001) (quoting Patrolmen's Benevolent Ass'n v. City of New York, 74 F. Supp. 2d 321, 335 (S.D.N.Y. 1999)). "The materiality of a transfer cannot be demonstrated where a plaintiff offers `no evidence, save his own unsupported, conclusory statements, that his new position is any less prestigious or that his duties have been significantly altered." Id. (quoting Mudholkar v. Univ. of Rochester, No. 00-7412, 2000 U.S. App. LEXIS 25208, at *5-*6 (2d Cir. 2000)). Here, plaintiff does not even allege, much less offer evidence, that the transfers were equivalent to demotions. The remaining incidents of alleged misconduct on defendants' part also do not arise to materially adverse employment actions.
Moreover, even assuming that plaintiff demonstrated an adverse employment action, he fails to raise an inference of discrimination. An inference of discrimination is demonstrated by showing that the employer treated employees not in the protected group more favorably than the plaintiff. Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997). Plaintiff has not offered any evidence that females similarly situated to him were treated more favorably. Specifically, plaintiff has not identified any female employees who disobeyed direct orders from a supervisor or were absent from work without leave but were promoted and not reprimanded or were otherwise treated differently than plaintiff.See Padilla v. Harris, 285 F. Supp. 2d 263, 270 (D. Conn. 2003) ("Prior disciplinary problems may be sufficient to justify differential treatment of otherwise similarly situated employees.").
Based upon the foregoing, plaintiff has not shown that he suffered an adverse job action under circumstances giving rise to an inference of discrimination on the basis of sex.
b. Hostile Work Environment
"It is axiomatic that mistreatment at work, whether through subjection to a hostile work environment or through such concrete deprivations as being fired or being denied a promotion, is actionable . . . only when it occurs because of an employee's sex, or other protected characteristic."Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001); see also Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 ("Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ` discrimination . . . because of . . . sex.'") (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (emphasis and ellipses in original). Even assuming that defendants' conduct could be characterized as hostile, plaintiff has not demonstrated that such actions were motivated by gender discrimination, and thus cannot establish a hostile work environment claim.
B. ADA Discrimination
Plaintiff alleges that the DOHMH discriminated against him based upon the neck, back, and shoulder injuries that he incurred as a result of a work-related car accident. To establish a prima facie case of discrimination based upon unequal terms and conditions of employment, a plaintiff must show that: (1) the employer is subject to the ADA; (2) he suffers from a disability within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered a materially adverse change in the terms or conditions of her employment. Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001).
1. ADA Coverage
The DOHMH does dispute that it is subject to the ADA. Therefore, the next inquiry is whether plaintiff is disabled within the meaning of the statute.
2. Disability Within the Meaning of the ADA
The ADA defines disability as: (a) a physical or mental impairment that substantially limits one or more of an individual's major life activities; (b) a record of such an impairment; or (c) being perceived or regarded as having such an impairment. 42 U.S.C. § 12102(2); Sutton v. United Airlines, Inc., 527 U.S. 471, 478, 144 L. Ed. 2d 450, 119 S. Ct. 2139; Schaefer v. State Ins. Fund, 207 F.3d 139, 142 (2d Cir. 2000). The regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") under the ADA provide guidance in construing the statute. Francis v. City of Meriden, 129 F.3d 281, 283 n. 1 (2d Cir. 1997). A physical "impairment" includes any physiological disorder affecting, inter alia, the musculoskeletal system. 29 C.F.R. § 1630.2(h)(1).
a. Impairments that Substantially Limit Major Life Activities
A "major life activity" is defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. § 1630.2(i). Assessing whether an impairment "substantially limits" a major life activity is an individualized and fact-specific inquiry. Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998). One who is "substantially limited" in a major life activity is either unable to perform such activity or "significantly restricted as to the condition, manner or duration" under which the activity can be performed "as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1). When determining whether a plaintiff has a disability, it is important to distinguish between impairments that only affect major life activities from those that substantially limit those activities. Ryan, 135 F.3d at 870; Feeley v. New York City Police Dep't, No. 97-2891, 2001 U.S. Dist. LEXIS 25431, at *19 (E.D.N.Y. Sept. 4, 2001). Accordingly, courts consider the nature and severity, duration or expected duration, and the long term impact of the impairment. 29 C.F.R. § 1630.2(j)(2). "[T]emporary, non-chronic impairments of short duration, with little or no permanent impact, are usually not disabilities." Williams v. Salvation Army, 108 F. Supp. 2d 303, 312-13 (S.D.N.Y. 2001) (internal citation omitted); see also Georgy v. O'Neill, No. 00-660, 2002 U.S. Dist. LEXIS 4825, at *29 (E.D.N.Y. Mar. 22, 2002);Jacques v. DiMarzio, Inc., 200 F. Supp. 2d 151, 159 (E.D.N.Y. 2002).
In his second complaint, plaintiff states that he has "[p]ain and difficulty walking long distances, walking up and down stairs, getting in and out of a car, looking side to side and up and down, and bending and lifting." (Not. of Mot. exh. CC). However, plaintiff's back, shoulder, and neck injuries did not significantly restrict a major life activity. At his deposition, plaintiff testified that his alleged disability did not affect his ability to perform his second job as a statistician at Montifiore Health Center, where his duties included calling physicians, answering phones, and conducting other customer service functions. (Id. exh. A at 162-64). After conducting an examination on December 11, 2003, Dr. Philip Lewis reported that plaintiff suffered from a mild partial disability and was able to perform light work that did not include lifting more than twenty (20) pounds. (Id. exh. V). The inability to perform heavy lifting, as compared to the average person, is not a substantial limitation on a major life activity. Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 644-45 (2d Cir. 1998) (holding that the inability to lift very heavy objects did not impair a major life activity); Varre v. City of Syracuse, No. 96-1792, 2000 U.S. Dist. LEXIS 2688, at *12-*13 (N.D.N.Y. Mar. 6, 2000) (plaintiff who could not lift more than ten pounds failed to establish the substantial limitation of a major life function). Nor is a major life activity substantially limited merely because one cannot walk long distances or easily traverse a flight of stairs. Bussa v. Alitalia Linee Aeree Italiane, S.P.A., No. 02-10296, 2004 U.S. Dist. LEXIS, at *22 (S.D.N.Y. July 21, 2004); Feeley v. New York City Police Dep't, No. 97-2891, 2001 U.S. Dist. LEXIS 25431, at *21 (E.D.N.Y. Sept. 4, 2001). Since plaintiff has not established that one or more of his major life functions is substantially limited, he is not disabled within the meaning of the ADA.
b. Record of an Impairment
Plaintiff does not claim a record of a physical impairment that substantially limits one or more of plaintiff's major life activities.
c. Being Regarded as Having Such an Impairment
In determining whether an individual is "regarded as" having a disability, the focus is "`on the employer's perception of the employee' and is therefore `a question of intent, not whether the employee has a disability.'" Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 646 (2d Cir. 1998) (quoting Francis, 129 F.3d at 284). However, it is insufficient to show that the employer regarded the plaintiff as disabled in some manner. Id. Instead, a plaintiff must prove that the employer regarded him or her as disabled within the meaning of the ADA. Id.
To prove that he was regarded as substantially limited in his ability to work, plaintiff bears the burden of demonstrating that his employer "perceived [him] to be incapable of working in a broad range of jobs" suitable for one of similar age, experience, and training. Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 872 (2d Cir. 1998); see also Colwell, 158 F.3d at 647; Romain v. Ferrara Bros. Bldg. Materials Corp., No. 97-4001, 2004 WL 1179352, at *3 (E.D.N.Y. May 28, 2004). Plaintiff has not provided any evidence that the DOHMH regarded him as disabled within the meaning of the ADA. In fact, upon receiving Dr. Lewis's report, the DOHMH requested that plaintiff notify its office as to his intention and availability to return to his former position as Public Health Advisor, Level 1. (Not. of Mot. exh. W). Since plaintiff has not demonstrated that he was regarded as having a physical impairment that substantially limited his ability to perform a broad range of jobs, he has not established a prima facie case with respect to his perceived physical disability claim.
C. Retaliation
To establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate: (1) participation in a protected activity that is known to the defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action. Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d Cir. 2003).
1. Protected Activity Known to Defendant
Plaintiff participated in protected activity known to the DOHMH when he filed a sexual harassment charge in 1995 against a supervisor, a discrimination and retaliation charge in August 2001, and a second discrimination and retaliation charge in December 2002.
2. Adverse Employment Action
Plaintiff contends that as a result of engaging in protected activities, he was: (1) denied promotions; (2) classified as being on unauthorized leave; and (3) denied timely workers' compensation benefits. As noted above, plaintiff cannot establish that the denials of promotions were adverse employment actions since he never applied for the positions at issue.
Insofar as plaintiff alleges that he was unreasonably designated as Absent Without Leave ("AWOL") after his April 8, 2002 motor vehicle accident, Annmarie Fraschilla, Program Management Officer for the DOHMH Sexually Transmitted Diseases Bureau, informed plaintiff by letter dated May 14, 2002 that he had failed to submit medical documentation supporting his absence. (Not. of Mot. exh. R). Moreover, by letter dated November 15, 2002, Shelley Phipps, Leaves of Absence Supervisor, notified plaintiff that he was being placed on Unauthorized Leave for failure to submit medical documentation supporting his absence. (Id. exh. S). Once plaintiff submitted the requested medical documentation, his personnel status was updated to reflect that he was out on leave. (Defs.' Local Rule 56.1 Statement para. 30). The DOHMH's failure to change plaintiff's employment status prior to receiving the necessary paperwork is not an adverse employment action. See Henriquez v. Times Herald Record, No. 96-6176, 1997 U.S. Dist. LEXIS 18760, at *15-*17 (S.D.N.Y. Nov. 25, 1997) (holding that the requirement to provide medical documentation during a medical leave of absence was not a materially adverse employment action).
Plaintiff also contends that the DOHMH delayed plaintiff's receipt of workers' compensation benefits despite receiving all necessary documents regarding his claim in June 2002. The DOHMH concedes that the delay constitutes an adverse employment action.
3. Causal Connection
"Causation can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). Plaintiff has not offered any direct evidence of retaliatory animus and thus must establish causation through circumstantial evidence.
A "substantial time lapse between an employee's protected activity and the adverse employment action is counter-evidence of any causal connection between the two for purposes of a retaliatory action." Jute v. Hamilton Sundstrand Corp., 321 F. Supp. 2d 408, 418 (D. Conn. 2004) (internal quotation omitted). However, the Second Circuit "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action." Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001). Compare Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir. 1980) (eight (8) month gap between EEOC complaint and retaliatory action suggested a causal relationship), with Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (passage of three (3) months was too long to suggest a causal relationship between complaint and failure to provide good recommendation).
The seven (7) years between the 1995 sexual harassment charge by plaintiff and the failure to timely submit documentation for plaintiff's workers' compensation benefits is too long a period to establish a causal connection. See, e.g., id. at 418-19 ("[Plaintiff's] 1990 complaint of sexual harassment is far too remote in time to be causally linked to any of the adverse actions occurring in 1999 or 2000."); Knight v. City of New York, 303 F. Supp. 2d 485, 497 (S.D.N.Y. 2004) ("The temporal sequence [of about fifteen months] fails as a matter of law to establish that [plaintiff's] harassment complaint prompted the negative evaluations."). Under the facts of this case, the August 2001 filing of the EEOC complaint is also too remote in time to support a retaliation claim based upon a failure to timely submit plaintiff's workers' compensation documentation nine (9) months later. See Taylor v. Potter, No. 99-4941, 2004 U.S. Dist. LEXIS 15992, at *70-*71 (S.D.N.Y. Aug. 16, 2004) (finding that an eight (8) month gap is insufficient to establish a causal connection between plaintiff's EEOC complaint and his suspension following a separate incident); Dodson v. CBS Broad. Inc., No. 02-9270, 2004 U.S. Dist. LEXIS 10787, at *23 n. 27 (S.D.N.Y. June 15, 2004) ("The eight months between [plaintiff's] complaint to [his supervisor] and his termination is not `very close' proximity sufficient to raise an inference of causality."); Lambert v. New York State Office of Mental Health, No. 97-1347, 2000 U.S. Dist. LEXIS 5197, at *39-*40 (E.D.N.Y. Apr. 24, 2000) (five (5) months was too large a time period to establish retaliation for EEOC complaint). But see Bernhardt v. Interbank of New York, 18 F. Supp. 2d 218, 226 (E.D.N.Y. 1998) (eleven (11) months between protected activity and firing might suggest relationship where defendant had possible reasons for delaying firing).
Additionally, since the delay in the filing of plaintiff's workers' compensation claim, documents for which were allegedly received by the DOHMH in June 2002, occurred before plaintiff filed his second EEOC complaint in December 2002, there is no causal connection between these two events. As plaintiff has not established a causal connection between his protected activity and the adverse employment action, his retaliation claims are dismissed.
V. Conclusion
For the reasons set forth above, defendants' motion for summary judgment is GRANTED and plaintiff's complaint is dismissed in its entirety. The Clerk of the Court is directed to close these cases.
IT IS SO ORDERED.